Document - Undermining global security: the European Union's arms exports

Amnesty International

Undermining Global Security: the European Union’s arms exports

AI Index: ACT 30/003/2004

1. Introduction:

This report seeks to analyse the current polices and practices of the 15 EU Member States and the 10 new Member States with regard to their control of the transfer of military, security and police (MSP) technology, weaponry, personnel and training. The report demonstrates why Amnesty International is convinced that more effective EU mechanisms to control MSP exports are urgently required to help protect human rights and ensure respect for international humanitarian law.

The major European Union (EU) arms exporting countries - France, Germany, Italy, Sweden and the United Kingdom - accounted for one third of the worldwide arms transfer agreements signed between 1994 and 2001.(1) The EU’s share of the market was smaller than the United States and Russia, but it increased on 1 May 2004 when ten new countries joined the EU. Some of these new Member States have significant arms production and exporting activities. For example, the enlarged EU will have over 400 companies in 23 countries producing small arms & light weapons (SALW) - only slightly less than the USA.(2) Such a dramatic enlargement of the EU presents both potential opportunities and dangers for European arms control.

The establishment in 1998 of the EU Code of Conduct on Arms Exports represented a significant advance in terms of regional arms export control. In the Preamble to the Code the 15 Member States declared themselves:(3)

DETERMINED to set high common standards which should be regarded as the minimumfor the management of, and restraint in, conventional arms transfers by all EU Member States, and to strengthen the exchange of relevant information with a view to achieving greater transparency,

DETERMINED to prevent the export of equipment which might be used for internal repression or international aggression, or contribute to regional instability; [emphasis added]

As well as providing the minimum standards for EU Member States’ export control policy and practice, the EU Code has also been adopted by many states outside the EU region and has informed the development of a number of regional and international agreements such as the OSCE Small Arms Document(4), and the Wassenaar Arrangement(5) Best Practice Guidelines for Exports of Small Arms and Light Weapons(6). Support for the principles of the EU Code has been declared by third countries – notably the EU Associated States of Eastern and Central Europe, Cyprus, the European Free Trade Area (EFTA), members of the European Economic Area and Canada. It is also referred to in the EU-US and EU-Canada Small Arms Declarations of December 1999. In November 2000, the second Consolidated Report of the EU Code recorded that Malta and Turkey had also pledged to subscribe to the principles of the EU Code.

However, the application of EU Code has shown the system to be deeply flawed. Disturbingly, as this report shows, there are numerous reports of exports of MSP equipment, technology and expertise from existing EU Member States or new EU member states which have been transferred mostly in secret to recipients who have used such items for grave human rights violations or breaches of international humanitarian law.

Thus, the decision by existing Member States to carry out a comprehensive review of the EU Code during 2004 is welcome. Such a review should provide an opportunity for a thorough assessment of the first six years of the EU Code’s operation and for appropriate amendments so as to ensure that all 25 EU Member States are working together and following responsible arms export control policies. The review process should involve not only the various national governments but also consultation with other interested parties such as parliaments, the business community, non-governmental organisations (NGOs), professional associations and academic experts. However, as explained in the concluding chapters, Amnesty International is concerned that the EU member states do not appear to be heading towards the kind of comprehensive review that AI would like to see take place.

The following chapters examine existing EU Member States’ and New Member States’ inadequate adherence to the minimum standards set by the EU Code of Conduct on Arms Exports and highlight major weaknesses, ambiguities or loopholes in the Code, related EU mechanisms and national export controls. The final two chapters look at the review of the Code and suggest measures that EU Member States should promote to improve international conventional arms controls.

Amnesty International takes no position on the arms trade per se, but is opposed to transfers of military, security or police (MSP) equipment, technology, personnel or training - and logistical or financial support for such transfers - that can reasonably be assumed to contribute to serious violations of international human rights standards or international humanitarian law. Such violations include arbitrary and indiscriminate killing, "disappearances" or torture. To help prevent such violations, Amnesty International campaigns for effective laws and agreed mechanisms to prohibit any MSP transfers from taking place unless it can reasonably be demonstrated that such transfers will not contribute to serious human rights violations. Amnesty International also campaigns for MSP institutions to establish rigorous systems of accountability and training to prevent such violations.

2. Basic flaws in the EU Export Control Criteria

The EU Code of Conduct on Arms Exports requires EU Member States to use one or more of eight Criteria to consider, on a case by case basis, requests for exports of military equipment, including small arms and light weapons (SALW), and dual use equipment. These eight criteria are:(7)

Criterion One: International commitments:

· should refuseexport licences if approval would be inconsistent with respect for international commitments such as UN, OSCE or EU arms embargoes or if approval would breach treaties that control specific arms such as missiles or completely prohibit specific arms such as anti-personnel mines;

Criterion Two: Human Rights:

· will not issuean export licence if there is a clear risk that the proposed export might be used for internal repression and will take into account the nature of the equipment to ensure respect for human rights; (8)

Criterion Three: Internal Conflict:

· will not allowexports which would provoke or prolong armed conflict or aggravate existing tensions or conflicts in the recipient state;

Criterion Four: Regional Peace and Security:

· will not issuean export licence if there is a clear risk that the intended recipient would use the proposed export aggressively against another country or to assert by force a territorial gain or adversely affect regional stability in a significant way;

Criterion Five: Defence and National Security:

· will take into accountthe defence and national security of Member States and their allies;

Criterion Six: Terrorism and International Law

· will take into accountthe recipient state’s attitude towards terrorism and organized crime, as well as its compliance with international commitments, in particular on the non-use of force, including international humanitarian law and agreements on non-proliferation, arms control and disarmament;(9)

Criterion Seven: Diversion:

· will considerthe risks of diversion, especially to terrorist organizations, given the capability of the recipient country to exert effective export controls;

Criterion Eight: Sustainable Development:

· will take into accountwhether the proposed export would seriously hamper the sustainable development of the recipient country, considering the recipient country’s levels of military and social expenditure.

The EU Code also contains operative provisionsaimed at:

· harmonising the Code’s application of arms export control by Member States, including the use of a common arms control list

· increasing transparency with regard to governmental authorized arms exports

· enabling consultation between EU governments on prospective exports

to prevent "undercutting"(10)

Under these operative provisions, states are required to notify each other of arms export licences they have refused when a proposed arms export has failed to meet the Code criteria. Before any Member State can grant a licence that has been denied by another Member State (for an essentially identical transaction in the preceding three years), it is required to consult the State that denied the original licence. Although the power to take the final decision remains with individual States, if a licence is granted in these circumstances, the licensing State will have to provide a detailed explanation of its reasoning. The EU Code also imposes an annual reporting obligation on States.

This combination within the Code of a comprehensive set of determination criteria coupled with the set of operative provisions to bring them into effect makes the EU Code an important advance in regional export control.

Yet despite these commitments, certain EU and new Member States have - by neglect, lack of resources or intent - undermined, by-passed or ignored their own national export criteria and those of the EU Code. Despite their promises to the contrary, EU and New Member States have allowed arms and security equipment to be transferred to illicit or abusive end users. Amnesty International and other arms control researchers, including United Nations investigators, have discovered the following ways through which this has occurred.

Divergences in governmental "interpretations" of the EU Code, Embargoes and National Export Control Criteria

There have been a number of cases where differing "interpretations" by EU governments of the EU Code have resulted in officially sanctioned arms exports in clear contradiction of fundamental EU Code Criteria. For example, arms or security equipment from the EU has been transferred to embargoed destinations in breach of Criterion One and, moreover, to security forces that are clearly likely to use such arms and security equipment for human rights violations or breaches of international humanitarian law, in breach of Criterion Two.

In addition there have been interpretations of how to implement the Operative Provisions of the EU Code that have resulted in arms and security exports contrary to the purposes of the Code. For example, the EU Code and most national export reporting systems of EU Member States do not explicitly cover transfers of government-owned arms to other governments - "government to government" transfers. Furthermore in many EU and new Member States, the level of secrecy around such "government to government" transfers means that neither parliament nor the public can be sure whether these transfers are consistent with national or EU export criteria.

The details of certain transfers that have come to light - either through limited government reporting or through the investigative work of journalists, human rights and arms control researchers - have given grave cause for concern.

The EU Code and "Undercutting"

Because the process of consultation over denial notices is confidential between governments, it has been impossible for Amnesty International to identify the true extent and nature of "undercutting". However an indication of the level of such undercutting was given recently by the UK Foreign Secretary, Jack Straw, in evidence before a Select Committee of UK Parliamentarians:(11)

"In terms of undercutting we [the UK government] consulted other Member States 20 times last year and we [the UK government] undercut them five times…the denial notices and undercut notifications are confidential. One Member State does make information available about its denial notices, which is the Netherlands, but all the rest of us do not, for our own reasons. In terms of total numbers it is roughly proportionate to the size of the different countries' defence industries." A UK Foreign Office official, also giving evidence before the Committee, stated that although he could not give a precise figure approximately 15 cases of "undercutting" were recorded per year across the EU.

Although government Ministers and officials may believe that such numbers are relatively low, in practice each case of undercutting can potentially result in arms being sent to a country where there are serious concerns that the weapons will be used for human rights violations, as illustrated in the following case.

In May 2002 after a long delay, the German government formally refused to issue an export licence for the export of H&K G36 rifles to Nepal, after Amnesty International’s German Section had raised concerns about the possible impact of such a transfer on human rights in Nepal.(12) It would appear that the long delay allowed another EU member state, the UK, to issue an export licence for similar weapons before the German government’s formal refusal, thus avoiding the need to initiate the EU code undercutting process.

In February 2002, Jane’s Defence Weeklyreported that "the Royal Nepalese Army has selected the H&K G36E 5.56mm assault rifle to fulfil a longstanding requirement for some 65,000 weapons. The initial delivery of some 5,000 weapons is intended for this month, but German export controls may yet block the deal. Deliveries of the full order will be phased over 10 years with the bulk obtained over the initial 2-3 year period. All details of the contract are not yet known."(13) In 2003, Jane’s Infantry Weaponsreported that G36 rifles are now in service in Nepal.(14)

The German company H&K has had a long-standing licensed production arrangement with Royal Ordnance, a UK company. In 2001, the UK government issued an export licence for the export of 6,780 assault rifles to Nepal. (15) In the absence of meaningful transparency by both the German and UK governments concerning arms export deliveries, Amnesty International has not been able to ascertain whether these rifles have been exported to Nepal.

In its 2003 Annual Report, Amnesty International reported that: "Against a background of mounting political crisis, there was a sharp rise in the incidence of unlawful killings, "disappearances", torture and arbitrary arrest and detention by the security forces, and of deliberate killings, hostage-taking and torture by the Maoists. The abuses were carried out in the context of the "people's war" declared by the Communist Party of Nepal (CPN) (Maoist) in 1996, and the declaration of a state of emergency and the deployment of the army in late 2001."

A National Human Rights Commission investigation team has investigated allegations that one person was shot dead and 19 others were summarily executed after being taken into custody by the army in Doramba village, Ramechhap district on 17 August 2003. This incident occurred during a ceasefire, and post-mortem reports suggest that the execution victims had their hands tied behind them, and were shot in the head at close range with rifles. The casings were found in the area by investigators. The army has recently admitted that some of the victims were killed illegally and is initiating court-martial against the major responsible for the patrol that day.(16)

Given such reports of the misuse of firearms by the Nepalese security forces, Amnesty International is calling upon all EU countries – particularly the German and UK governments - to announce a freeze on the export of such equipment to the Nepalese forces until the danger of deliberate and serious misuse no longer exists.

Austrian and UK transfers to Zimbabwe:

Following widespread and sustained human rights abuses by the Zimbabwean security forces and their armed supporters, the European Union (EU) introduced an embargo on military equipment to Zimbabwe in May 2000. In the run-up to the presidential election in Zimbabwe in March 2002, repression by government forces of opposition rallies and other campaign gatherings intensified. Youth militia, supporters of the ruling Zimbabwe African National Union-Patriotic Front (ZANU-PF), and so-called war veterans, often with the direct collusion of the police, perpetrated much of the political violence.

Despite the EU embargo and this pattern of repression, 66 four-wheel drive vehicles produced by the Austrian arms company Steyr were delivered to the Zimbabwe National Army (ZNA) in November 2001. Opposition parliamentarians in Austria raised concerns that the vehicles would be used to transport youth militias and war veterans spearheading Zimbabwean President Robert Mugabe's campaign for re-election in March 2002.

The Austrian authorities claimed that the vehicles were not covered by the EU embargo or by Austrian national legislation on military equipment because they were not fitted with guns and other special devices. (17) In contravention of Criterion Two of the EU Code, the 66 vehicles were considered by the Austrian government to be ordinary "transport vehicles" so that Steyr did not need special permission from Austria's Foreign and Internal Affairs Ministries before agreeing the deal with the Zimbabwean government.

Moreover, the involvement of Zimbabwean armed forces in the brutal war in the Democratic Republic of the Congo meant that the Austrian government also ignored Criteria Three and Four of the EU Code. In addition, the Austrian domestic law forbidding Austrian firms from selling military equipment to countries involved in war, or to places where there is a strong likelihood of war breaking out, was ignored.

Photo caption: Police vehicle in use as Zimbabwean riot police patrol Harare during riots over food prices in October 2000. © Juda Ngwenya

In March 1998 the UKgovernment announced that the Department for International Development (DIFD) had approved a project to supply over one thousand Land Rovers to the Zimbabwe Police as part of a programme to help to reform the police in Zimbabwe. The project was valued at US$14.8 million.(18)

Although these transfers of Land Rovers took place before the imposition of the EU embargo against Zimbabwe, concerns about the deteriorating human rights situation in Zimbabwe had previously been raised by a number of human rights organisations, including Amnesty International. In May 1998, just before the EU Code was adopted, the UK government had indicated that it was aware of the likelihood that the Land Rovers could be used for political repression. Nevertheless, the aid project was not formally cancelled until May 2000. By that time it was reported that some 450 Land Rovers had already been delivered and various reports had detailed the use of Land Rovers to facilitate human rights violations by the Zimbabwean security forces. For example, in the town of Zaka in Masvingo Province, local government Land Rovers were reportedly used in co-ordinated attacks on New Year's Eve 2001 against opposition party activists. Fifteen opposition political activists were hospitalized after severe beatings by militia members. DFID and the UK government’s continued support for the supply of such vehicles after June 1998 was contrary to Criterion Two of the EU Code.

UK and other EU exports to China:(19)

The EU imposed an arms embargo on China (excluding the Hong Kong SAR) in June 1989, shortly after the Tiananmen massacre. Unfortunately the scope of the ban was left to interpretation by national governments. In the absence of an agreement on a common interpretation it appears that different EU countries have "interpreted" the breadth of this embargo differently. In addition, Criterion Two of the EU Code of Conduct also binds all EU Member States not to issue export licences "if there is a clear risk that the proposed export might be used for internal repression."

A memo dated 26 February 2002 to a joint parliamentary select committee in the UK,(20) examining the 2000 Annual Report of UK arms exports, states that the UK interpreted the arms embargo on China as including:

· Lethal weapons such as machine guns, large-calibre weapons, bombs, torpedoes, rockets and missiles;

· Specially designed components of the above, and ammunition;

· Military aircraft and helicopters, vessels of war, armoured fighting vehicles and other such weapons platforms;

· Any equipment which might be used for internal repression;

· All defence exports to China to be assessed on a case by case basis against the consolidated EU and national arms export licensing criteria.(21)

However, analysis from a recent report by Oxfam Great Britain(22) indicated that whilst UK components for ‘lethal weapons’ were banned, UK components for other military equipment were not. The 2001 UK Annual Report on Strategic Export Controls lists a number of components, technology, software, and related systems for weapons platforms licensed for export to China that year. These include categories of equipment that would clearly be for use in or with a weapons platform which would itself be subject to embargo.(23)

Furthermore it seems that the UK is not alone in its narrow interpretation of the range of MSP equipment that might be used for "internal repression" – as defined in the EU Code. This report also details below how a number of EU companies have been involved in the supply of communication and surveillance systems to China that have contributed to internal repression.

In addition to bending their "interpretation" of the scope of the EU embargo and the application of the EU Code Criteria, certain EU governments, specifically the French and the German governments, have been pressing for the EU arms embargo to be lifted completely, despite continuing widespread and endemic human rights violations throughout China. Thus, the European Council on 12 December 2003 invited the General Affairs and External Relations Council (GAERC) to re-examine the EU Arms Embargo on China. The GAERC met on 26 January 2004 and decided to remit the issue to the relevant working groups for detailed examination. The issue was due to return to the GAERC at the end of April 2004.(24) The European Parliament has taken a position against lifting the embargo several times, invoking continuing human rights infringements in China.(25) The fact that reservations about lifting the embargo have been expressed by some EU member states, particularly Denmark, the Netherlands and Sweden, could mean that a decision may be difficult.

Photo caption: Visitors look at models of Chinese fighter jets at an aviation exhibition showcasing both military and civilian aircraft in Beijing in September 2003. Amnesty International is concerned that the UK government’s interpretation of the EU arms embargo on China has resulted in licences for components for military aircraft being granted. © AP/Greg Baker

French exports to Myanmar:

In April 2001 the EU agreed to extend the embargo on Myanmar [Burma] that had been in force since 1996,(26) and confirmed the embargo on the export of arms and military equipment from EU member states. Therefore it is puzzling to find, according to official data, that France made shipments of equipment within the category "Bombs, Grenades, Ammunition, Mines, & Others" to Myanmar in 1998, 1999 and 2000 as follows.

French exports to Myanmar [Burma] between 1998 and 2002.(27) (US$)

200019991998
Bombs, Grenades, Ammunition, Mines & Others (930960)	17,248	133,895	18,344

Whilst this data does not provide specific details of what exactly was exported to Myanmar, the categories of munitions listed above raise serious concerns regarding whether or not the French government has enforced the EU embargo on military exports to that country or fulfilled its obligations under the EU Code.

Colombia:

Spain together with a number of other countries – including the UK and most importantly the USA - has authorised transfers of military, police and/or security equipment and other assistance to Colombia over the past few years. Given the pattern of gave human rights violations committed by the Colombian security forces and by paramilitaries associated with them, such MSP transfers are almost certainly contrary to Criteria Two and Six of the EU Code.

At the end of February 2003, the Spanish government announced a huge unconditional package of military assistance to the Colombian government armed forces "to fight any kind of occurrence that affects the security of the Colombian people", in the words of Federico Trillo, the then Spanish Minister of Defence. It reportedly included eight Mirage-F fighter planes, two C-212 military transport planes and real-time satellite intelligence, as well as the possibility of helicopters and patrol launches. Reports indicated that anti-terrorist equipment and exchanges of military personnel to help train the Colombian security forces in military intelligence and anti-terrorism were included in the package. The fighter-planes were subsequently dropped from the aid package.(28) The new Spanish government which was to take office at the end of April 2004 has suggested that it may review the 2003 agreement with Colombia.(29)

"Design loopholes" in EU export controls

The Operative Provisions for the EU Code are quite general and even vague in their wording and, together with loopholes in many EU states’ national arms export control legislation, allow many arms transfers to occur with little, or no, regulation. For example, the EU Code has no operative provisions for Member States to specifically control arms brokering, arms transporting and arms financing activities by EU nationals and residents when such activities, and the related arms deliveries, take place through "third countries". As explained in Chapter five of this report, these activities are still not adequately controlled despite the introduction of an EU Common Position on arms brokering in 2003.

Similarly, the EU Code has no operative provision for Member States to specifically regulate the transfer of licensed arms production or assembly facilities to "third countries", and no operative provisions for Member States to regulate transfers from stocks of surplus arms or the provision of MSP expertise, training or personnel. Other loopholes reported below have been uncovered by recent research. Taken together, these "design loopholes" can easily be exploited by arms traffickers or suppliers to circumvent the purposes of the EU Code.

Slovakian "repair" loophole:

Since its accession on 1 May 2004, Slovakia is now bound by the EU Code, and it has – along with other New Member States - previously aligned itself with the EU Code.

The UN Panel investigating breaches of the arms embargo on Liberia in 2001 strongly suspected that a Mi-24 combat helicopter was illegally delivered to Liberia.(30) In June 2000 a Mi-24 combat helicopter from Kyrgyzstan had been shipped to Slovakia to be repaired, and was allowed to leave in August 2000, purportedly to be flown back to Kyrgyzstan. A second Mi-24 was brought for repairs in October 2000, but was intercepted in February 2001 as it was at the airport about to leave Slovakia. The UN Panel asserted that the second helicopter, had it not been stopped, would have gone to Liberia as well. The UN found that the arms brokering company, the air transport company, and the aeroplane used for both shipments all played a role in other illegal arms deliveries to Liberia.

The UN Panel’s report described that the then Kyrgyz military attaché in Moscow, Maj. Gen. Rashid Urazmatov, had signed a contract with the Slovak repair company LOT (Letecke Opravovne Trencin, or Aircraft Repair Company Trencin), claiming to act on behalf of the government of Kyrgyzstan. The Kyrgyz authorities, however, said they had no idea about a repair contract and, to the contrary, had arranged to sell the helicopters to a company based in Guinea, Pecos Compagnie SA.(31) The helicopters purportedly were for the government of Guinea, according to the end-user certificate supplied by Pecos that showed the ultimate purchaser of the weapons.(32)

Human Rights Watch(33) later uncovered that: "key to the fiasco was a loophole in Slovak law under which the arms deal with Kyrgyzstan did not require approval from Slovakia’s arms-export licensing commission… [because]… arms deals were exempt from licensing requirements if the transaction was for repair or refurbishment. As a result, no license application was filed for deals involving repair or upgrading of military equipment from abroad; no end-user certificate was required; and no document authentication or checks on the destination were performed." (34) In response to the scandal, this legal loophole was closed by the Slovak government in December 2001.

Italian "hunting guns" loophole

In Italy, as in many other countries, the category "small arms" is not precisely defined in the national export control legislation and administrative procedures. Officially a distinction is made between small arms for military purposes and civil arms generally used for sport, hunting and self-defence. "Military arms" require a specific government licence for export and their transfer is supposedly checked and monitored by parliament. Small arms categorized as military weapons or "war arms" come under the Arms Control (185/90) Law. Arms which fall within this category include rifles, machine-guns and machine pistols, which are automatic arms and specifically built for military purposes.

However, the export regulations governing the second category of weapons — "civil arms" — are very weak and it is possible to export handguns from Italy by merely obtaining the permission of a local police commander. Italian research institutes Archivio Disarmo and IRES Toscana reported that there had been an increase in exports of such small arms in recent years, especially to countries where they are likely to be used to violate human rights.(35)

Indeed the vast majority of the individual weapons exported from Italy in recent years have been categorized as intended for "civilian" use and so fall outside the remit of the 1990 Arms Control Law. Among the weapons exported under this category are not only semi-automatic firearms, but also manually charged canna-rigata rifles, canna rigata muskets, semi-automatic pistols, revolvers, and spare parts, ammunition and explosives that can, in any case, be used for military purposes.

Weapons routinely used by the police are normally not considered "war arms". This categorisation has led to a liberalisation in the trade in most semi-automatics. The result is that Italian traders are able to export "small civil weapons" to countries devastated by violent conflict and gross human rights violations.For example, in Brazil handguns made by the Italian company Berretta are the second most numerous foreign small arms confiscated by the police,(36) in a country where both the use of small arms by civilians in crime and misuse of small arms by police are rife, and where the government’s attempts at control have so far been ineffective.

Likewise, between 1996 and 1997 Italian companies exported pistols, rifles and ammunition worth 13 billion lire (approximately US$6 million) to Algeria, a country which has been ravaged by serious human rights abuses resulting in the killing of more than 100,000 people by security forces, state-armed militias and armed groups since 1992.(37)

German "air" pistols loophole:

In 2002, the UK National Criminal Intelligence Servicerevealed that over 35% of the firearms recovered by the police were Brocock ME38 Magnum air pistols, and that many of them had been converted to fire live .22 and even .38 ammunition. A study by the Forensic Science Service has discovered that 50 unsolved murders and attempted murders were carried out with Brocock pistols. Such pistols have been imported from Germany and distributed by the Birmingham-based company Brocock,which makes the air cartridge system that powers the airgun pellets.(38)

In 2003, the UK Daily Telegraphquoted Mr Silcock, who runs Brocock, stating that the ME38 air pistol had been specially designed for Brocock by a German armaments manufacturer, Cuno Melcher.(39) Cuno Melcher continues to manufacture, and offer for export, the ME 38 pistol.(40) Enquiries with the German Federal Ministry of Economics and Labour found that there are no restrictions on the export of air guns and air pistols by the German authorities.(41)

The lack of consistent controls on firearms within the European Union has created a situation where the more stringent controls in one country are undermined by the lack of controls in another. This lack of consistency also applies to a range of other police or security equipment that are classed as controlled goods in some EU countries but not others: for example, stun guns, batons (tonfas) and certain types of chemical irritant weapons.

Some Lessons Learned

These cases and many more in the chapters that follow illustrate that despite the adoption of the EU Code in 1998 and the enactment of national systems of control, transparency and accountability, EU Member States and the new Member States have continued to allow the transfer of arms and military equipment to recipients who have used them to carry out human rights violations and breaches of international humanitarian law. These cases also illustrate how weaknesses in the EU Code, particularly the lack of clarity of how to interpret some of the Criteria and the limited scope and vagueness of the Operative Provisions, have resulted in inadequate, or even no, control of the transfer of certain arms and security equipment.

Since the enactment of the EU Code, EU Member States have acknowledged some of the above concerns and have attempted small improvements to strengthen the Code. Through discussions of the Working Party of the Council of the EU on Conventional Arms Exports (COARM), states have tried to improve the consistency of the Code’s application amongst Member States, and have sought to include areas not originally covered by the Code. Although many of these are discussed in detail in subsequent chapters, the most important developments have included:

· publishing an Annual Consolidated EU Report giving aggregate figures on export licences granted by EU member states;

· the development of a "Users Guide to the EU Code" which seeks to clarify the Member States’ responsibilities with regard to denial notifications and consultations;

· plans to establish a database of EU government licence denials – which should enhance information exchange amongst Member States and aid assessment of arms export licence applications;

· agreements on harmonising end-use certification processes;

· adoption of a Common Position on arms brokering;

· agreement of an updated military list.

However, as the following chapters demonstrate, these measures alone are insufficient to make the EU Code regime effective.

The EU Code Review and the Accession Process:

In late November 2003, the fifth EU Annual Consolidated Report to the EU Code of Conduct was made public. Among nine "priority guidelines for the near future" the EU Member States committed themselves to review the EU Code. Such a review can potentially provide Member States with an important opportunity to remove existing weaknesses in the Code and increase the scope of its coverage. However there is to date little indication of what such a review might contain or whether parliamentarians at national and EU level and members of civil society will be able to contribute to the review.

In reviewing the Code, EU Member States should enhance the Criteria and Operative Provisions to ensure that no MSP arms, equipment, technology, expertise or services are transferred to states where they could be used for human rights violations or breaches of international humanitarian law. All such obligations must be extended to cover government-to-government deals, "third country" dealing by EU citizens and residents, "arms in transit" via the EU, "surplus arms" and the provision of MSP expertise, training and personnel. This should be explicitly stated in the wording of the EU Code.

3. Transfers of "Surplus" Arms

Surplus weapons are a predictable consequence of changing security requirements, defence restructuring and re-equipment programmes. States periodically have to dispose of significant quantities of surplus small arms and ammunition. The importance of responsible disposal of surplus and illegal weapons has been recognised by the international community, especially with regard to small arms and light weapons (SALW). The 1997 UN General Assembly Resolution on SALW stated that: "All States should exercise restraint with respect to the transfer of the surplus of small arms and light weapons manufactured solely for…use by the military and police forces. All States should…consider the possibility of destroying such surplus weapons".(42)

This international consensus was reinforced and developed by governments in Europe through the Organisation of Security and Cooperation in Europe (OSCE). In 2000 the OSCE agreed a politically binding Document on Small Arms. All the 15 EU states and the 10 new states are members of the OSCE and are bound by this agreement. Section 4, part C, paragraph 1 states that:

"The participating States agree that the preferred method for the disposal of small arms is destruction. Destruction should render the weapon both permanently disabled and physically damaged. Any small arms identified as surplus to a national requirement should, by preference, be destroyed. However, if their disposal is to be effected by export from the territory of a participating State, such an export will only take place in accordance with the export criteria set out in Section IIIA, paragraphs 1 and 2 of this document."(43)

Photo caption: Destruction of small arms © SEESAC

Despite such international commitments and obligations, some European states (see examples below) have not provided adequate resources or political will to ensure that surplus SALW are disposed of responsibly. Officials are essentially instructed to dispose of them as quickly as possible, without expense and if possible at a profit. In some EU and new Member States this practice has led to arms being transferred to criminals or to security forces or non-state actors that have used such weaponry for human rights abuses.

New Member States

Although some EU Member States also sold surplus arms following the end of the Cold War,(44) a number of the new Member States together with other Central and Eastern European countries sold off large amounts of their surplus Soviet-era weapons and ammunition. This is particularly true for candidates for NATO membership, as well as new NATO members, who have been modernizing their armed forces in line with NATO guidelines. The surplus weapons have sometimes been transferred to conflict zones or to governments with a record of using similar weapons to facilitate human rights abuses.(45)

Some limited regional and international initiatives have been initiated to attempt to address the ongoing cascade of surplus weapons from the former Soviet Bloc to the world’s human rights and conflict zones, by reducing the quantities of such weapons available for sale. NATO and its Partnership for Peace program, for example, have made funds available for the destruction of surplus small arms in NATO candidate countries, as have individual donor countries from the EU. However, some of those EU New Member States with large surplus arms have not taken full advantage of these offers of support.

Slovakia:

Slovakia had failed to utilise such programs. Instead sales of surplus weapons were found to comprise a significant portion of Slovakia’s foreign trade in arms. In 2000, for example, nearly two-thirds of all arms exports were surplus weapons, as opposed to new production.(46)

Many more surplus weapons are expected to come onto the market as Slovakia institutes military reforms that will considerably reduce the size of its forces.(47) By 2010 Slovakia plans to reduce its forces by 21,000 troops, and the country will seek to shed heavy equipment in favour of lighter military equipment that can be more rapidly deployed. Official information on Slovakia’s military holdings, when compared to its planned force structure for 2010, reveal the scale of weapons that could potentially be dumped onto the market place: In 2002 the Slovak armed forces had 271 battle tanks in their arsenal, and by 2010 this number was expected to be reduced to 52; the 524 armored combat vehicles held in 2002 are to be brought down to 164 by 2010.(48)

The Slovak military has also made clear that it intends to use revenue from the sale of unneeded weapons to finance its modernization.(49) In the absence of a well-funded destruction surplus arms destruction program, the financial incentive to sell surplus arms is strong. According to a 2001 estimate, the destruction of surplus battle tanks reportedly costs approximately 100,000 SKK (some $2000) per unit in Slovakia. Surplus tanks sold to Angola, on the other hand, were said to have earned some 700,000 SKK (approximately $15,000) apiece.(50) A senior MOD official said Slovakia was able to sell only a few of the more than twenty surplus MiG-21 fighter planes it had on offer in the late 1990s, and that the cost of dismantling the rest was 150,000 SKK (approximately $3000) per unit.(51) Selling the weapons not only spares the government the added expense of storage or destruction, it also earns income for the government. In the first half of 2000, the Slovak MOD reportedly added 73 million SKK (more than $1. 5 million) to its budget from the sale of surplus aircraft and tanks.(52)

Pressures to make sales are such that the government often intervenes to market the surplus wares of its military.(53) According to official data, from 1999 to the end of 2002 Slovakia sold Angola 205 battle tanks, thirty-eight large-calibre artillery systems, and twenty-five combat planes. Most were direct exports of surplus weapons from Slovak stocks, but a considerable number were re-exports by Slovak companies of weapons from the arsenals of Bulgaria and the Czech Republic. (54)

Poland:

A 1999 shipment of Polish tanks to Yemen was diverted en route and reportedly delivered to Sudan, sparking an international scandal that drew attention to the risk of weapons diversion and the responsibility of arms exporters to evaluate more carefully potential arms clients. The shipments were part of a deal between Yemen and Poland's state-run Cenzin arms company reportedly worth $1.2 million.(55) However despite this history of diversion by Yemen, Poland continued to engage in the arms trade with Yemen, with confirmed exports in 2001.(56)

Polandhas also continued to sell off other Soviet-standard weapons. In early 2002 it reportedly had some 800 outdated tanks available for sale. It was seeking markets for its surplus weapons in Asian countries, including Indonesia.(57)

Czech Republic:

Between the end of 2000 and the beginning of 2001, the Czech Ministry of Interior started selling significant quantities of surplus SALW to selected Czech firms that wanted to export the weapons abroad. The arms, which belonged to the old Interior Ministry troop arsenals, included hundreds of machine guns, tens of thousands of submachine guns and 40 bazookas.(58) In the recent past the Czech government has licensed the transfer of surplus conventional arms to governments with poor human rights records. For example, in 2000 the Czech government agreed a licence for the transfer of an estimated 16 RM 70 122mm mobile rocket launchers from ex Czech army stocks to Sri Lanka. These were delivered in 2000-1. Sri Lanka also received an estimated 41 T-55 AM-2 main battle tanks again from ex-Czech army stocks. Similarly the government of Zimbabwe received a consignment of six ex-Czech army RM 70 122mm multiple rocket launchers in 2000.(59)

There have also been concerns about Czech surplus weapons transfers to governments with poor end use controls and a history of diversion. In 1999 the Czech government licensed the transfer of an estimated 106 T-55 AM-2 main battle tanks – all ex Czech army, possibly including T-54 tanks, possibly modernised before delivery - to Yemen.(60) Previously, Poland was reported to have halted a shipment of 20 T-55s bound for Yemen after it was found that an earlier shipment of 20 T-55s had found its way to Sudan (see above).

Nevertheless, the Czech government announced in August 2002 that it would offer for sale nearly 200 surplus battle tanks and some fifty combat planes.(61) It was also reported in February 2002 that the Czech Interior Ministry intends, over the next few years, to sell off 45,000 police pistols. The company Ceska Zbrojovka began supplying the police with the same number of new weapons at the beginning of the year. In reply to a question on whether the Czech Interior Ministry is capable of guaranteeing that the 45,000 pistols will not eventually end up in embargoed regions of the world, where they could be misused, the Czech Interior Minister Anna Stanclova said: "We are very careful about selling weapons. Only companies that have a license to deal in weapons obtain them. Nevertheless, we are unable to guarantee that they do not then end up in these regions."(62)

EU Member States before 2004 enlargement

However, it is not only new Member States that have been guilty of irresponsibly exporting surplus arms contrary to the criteria of the EU Code, but also some of the existing EU members.

Denmark:

The Danish government reportedly gave a false statement to UN in an apparent attempt to hide an irresponsible export of surplus weapons.In March 2001, as part of a UN fact-finding operation into SALW, the UN Secretary General invited Member States to inform them about national measures to "destroy surplus, confiscated or collected small arms and light weapons."(63) In their response to the UN the Danish authorities claimed that: "All small arms and light weapons of the police forces which have been taken out of service are destroyed centrally through melting or shredding."(64) However it was subsequently reported that the Danish Minister of Justice, Ms Lene Espersen, admitted that this information was false and that instead of destroying such weapons the Danish authorities had sold them to a German arms dealer.(65)

Since 1998 10,000 old Walther 7.65mm calibre guns previously in service with the Danish police have been replaced with new 9mm weapons from the German arms producer Heckler and Koch. Part of the 24 million Danish kroner cost of the arms replacement deal was offset by Heckler and Koch agreeing to buy the old weapons from the Danish government for a cost of 7 million kroner, with the purpose of selling them on the open weapons market. It has since been reported that some of these guns have been sold over the internet.(66)

This surplus weapons sell off is contrary to the spirit of UN General Assembly resolutions on SALW, which have been strongly supported by Danish government. For example the 1998 UNGA resolution says that: "All States should exercise restraint with respect to the transfer of the surplus of small arms and light weapons manufactured solely for…use by the military and police forces. All States should…consider the possibility of destroying such surplus weapons.(67)"

Statewatchreported that at no time during the deal did the Danish police enquire of the Danish Foreign Ministry whether they would be violating Danish government small arms policy. The police stated that the deal would not be violating the UN resolutions and that if people wanted guns and "did not have the possibility to buy the police weapons they would, all things considered, buy other weapons."

In another example from 1999, the Danish army sold 40,000 used 7.62 Garand rifles to a private arms dealer.The rifles were then sold to a dealer in Canada. When the Canadian arms dealer applied to the Canadian government for a license to export the rifles to the USA, the Canadian government refused. The dealer then took the guns apart and shipped the components to the USA for later re-assembly. The subterfuge came to light in 2000 when some 20,000 rifles were seized by US and Canadian Customs in the biggest arms seizure in US history.(68)

In December 2003, after these press revelations, the Danish Justice Minister Lene Espersen confirmed that police and military sales of used firearms would be suspended: "There will be no agreements in the future on the sale of decommissioned police weapons. These weapons will be destroyed in the future."(69) Similarly the Defence Ministry has decided that the military will no longer sell or turn over handguns to civilians, unless the weapons have been rendered unusable in advance.(70)

United Kingdom :

The UK government asserted in 2000(71) that small arms declared surplus by the Ministry of Defence (MOD) (other than automatic weapons, which are routinely destroyed) are "made available only to Governments, for use by acceptable military, paramilitary and police organisations, either directly or through duly licensed entities authorised to procure weapons."(72) Surplus weapons are sold by the Disposal Services Agency (DSA), which is a subsidiary of the Defence Export Services Organisation (DESO), within the MOD. The DSA "normally requires overseas governments which purchase surplus MOD equipment to obtain a UK export licence before collection of equipment from the UK."(73)

Two major aims of the DSA are to secure the best financial return from the sale of surplus equipment and to promote British business. As such, there is a tension between the principles governing the disposal of surplus small arms and the basic aims of the DSA. This was highlighted in late 2002, when, at the African Aerospace and Defence Exhibition hosted by the South African government, the DSA had a brochure offering the SA80 rifle (designated the L85A1), including the most recently updated model L85A2 for sale.(74) This most recent update was only just being introduced into the UK armed forces at the time, so it seems strange that at the same time it was being marketed as surplus weaponry. The last African Aerospace and Defence Exhibition attracted more than 20,000 trade visitors from five continents and 40 countries. In all, 87 official delegations representing 37 countries attended the exhibition.(75)

It is of concern that these sophisticated and deadly small arms were being marketed in South Africa, a country which has one the highest rates of gun violence in the world,(76) and which is in the midst of the Southern African region where the uncontrolled proliferation and misuse of SALW by state and non-state actors has resulted in widespread human rights abuses in many countries. This marketing of surplus rifles contradicts the UK’s positive work in combating weapon proliferation in Southern Africa, through its role since December 1998 in the EU-SADC dialogue on small arms.

As well as marketing SALW, the DSA has also advertised surplus ammunition and explosive ordnance. At both the International Defense Industry, Aerospace and Maritime Fair (IDEF) 2003 (Turkey) and Defence Systems and Equipment International Exhibition and Conference (DSEI) 2003, the DSA was offering ammunition and mortar rounds for sale to government representatives. A picture on the brochure was identified as the .224 BOZ round developed by Civil Defence Supply in the UK – a modern high power round. (77).

Germany:

In January 2004, it was reported that the Interior Ministry of Lower Saxony was considering the option of selling a large amount of old police weapons on the free market. By 2006, around 15,000 to 17,000 type P7 pistols will be replaced by the more modern type P 2000 and will thus become redundant. According to the Ministry, these weapons will be ‘sold to reliable companies and traders’. Whether the weapons will remain within Germany or whether they will be exported is currently unknown. (78)

France:

On 19 May 2003, France’s Ministry of the Interior signed a contract with J.P. Sauer & Sohn's French partner Rivolier S.A. for the provision of the new duty pistol for the French law enforcement authorities. Under this contract the companies will deliver over 200,000 pistols to the French Gendarmerie Nationale, Police Nationale and French Customs. (79) At the time of writing the French government has not responded to requests from Amnesty International for a statement on whether the surplus pistols being replaced will be destroyed or sold and if to be sold, to whom.(80)

Key lessons to be learned

EU Member States should agree without delay an Operative Provision to ensure that transfers of surplus arms do not contravene any of the EU Code criteria. EU states must never export or transfer surplus arms to countries where they will be used for human rights violations, breaches of international humanitarian law or other violations of international law.

The EU Member States should agree without delay a binding Common Position, to destroy all confiscated illegal arms and to make every effort to destroy arms deemed surplus to their security needs - including both police and military arms and potentially lethal security equipment. Where such destruction is not possible, surplus arms should be securely stockpiled. EU Member States should provide human and financial assistance to EU partners with insufficient resources to carry out destruction or secure stockpiling programmes.

4. Failures to Control Transit and Trans-shipment

All governments in countries through which arms pass (or transit) need to ensure the security of the arms transferred and whether the transfers meet the international obligations of the state in transit. If secure passage does not exist there are dangers that those licensed arms transfers will be diverted to illegitimate end users who will use these weapons for criminal acts or to commit grave human rights abuses.

Operative Measures to explicitly control trans-shipment are not included in the EU Code, but (as detailed below) research for Amnesty International has shown clear contradictions between certain EU Member States practices with regard to their controls on trans-shipment and their obligations under the EU Code criteria. Certain countries have become key transit or trans-shipment hubs through which commercial and government freight (including arms and security equipment) flow. For such hubs, strict customs and freight control regulations need to be enforced. However, the reality is that in many of these transit hubs, the existing transit controls are very weak or are not adequately enforced. Unscrupulous arms dealers will seek to use the wide "holes" and weaknesses in national and regional controls on trans-shipment.

Amnesty International believes that the issue of transit/trans-shipment controls has not received adequate attention by governments. Two areas are of greatest concern:

· Danger of diversion– in contravention of EU Code Criterion Seven, diversion of arms shipments is facilitated by poor laws and oversight, inadequate customs and transport controls, lack of resources and corruption - allowing criminal gangs, terrorist supplier and, UN sanctions busters to flourish. This is reported principally in some of the new Member States for example Poland, Slovenia and Slovakia.

·

fs20 Violating EU Code Export Criteria– in contravention of several Criteria of the EU Code, governments may allow arms to transit through their territory to end users to whom EU governments would not normally allow arms to be transferred directly. This has been reported primarily in the Netherlands.

Danger of diversion

Poland:

It has been reported that, amongst arms in transit through countries in the Baltic region, it is not unusual for Polish military equipment to be found in illicit stores and shipments of arms.(81) Whether these arms have been acquired through unauthorised sales, authorised sales that are being transferred without the relevant permits, or stolen from stores is unknown. According to one report, shipments that included advanced weaponry were discovered in Gdansk and Czestochowa in 1997.(82) More recently in 2002, four Arrow anti-aircraft missiles were reported ‘missing’ from a train travelling from Skarzysko-Kamienna to Gdansk. This shipment was being transported by an intermediary from the manufacturer for export, suggesting that inadequate safeguards were in place.(83)

Slovakia:

Slovakia’s intelligence body, the SIS, reported in May 2002 that the country continued to serve as a trans-shipment point for illegal arms flows to areas of violent conflict, noting among other concerns that "Slovakia became, due to imperfect legislation, a transport corridor for illegal deliveries of weapons and a country where illegal deals were legalized."(84)

Under a legal exemption in a 1998 law and still in place following legal revisions in 2002, no license is required for the transit of military equipment through Slovakia if the equipment is on the territory of the Slovak Republic for a period of no longer than seven days. As noted by a licensing official, there would be no reason for any transit across Slovakia to take more than seven days, so this exemption effectively covered all weapons transit.(85) The airport in Bratislava in particular, has been a hub for illegitimate arms shipments. Arms shipments through Slovakia are subject only to civil aviation and customs controls. Customs and airport personnel are not able to check every shipment, and these controls have been insufficient to deter and detect suspicious activity.

Slovakia has been a point of origin or transit for arms deliveries to human rights abusers and countries in violent conflict, as well as to suspected illegal destinations. Slovak transport agents have been involved in arranging some of these deliveries.(86) In March 2000, a plane left Bratislava’s airport bound for Harare, Zimbabwe, allegedly carrying a mis-declared weapons cargo for use by Zimbabwean forces in the war in the Democratic Republic of Congo.(87)

According to Human Rights Watch, on the evening of September 29, 2001, an Iranian Ilyushin-76 plane landed at Bratislava airport and offloaded approximately three tons of cargo, which was to be loaded onto a Ukrainian plane for onward shipment to Angola. The Iranian plane departed again before authorities discovered that the contents of the shipment—504 units of anti-tank munitions packed in 84 containers—did not match the accompanying documents.(88) The rocket-propelled grenades bore no markings indicating the producer, but they were evidently new and were most likely manufactured in Iran.(89)

Slovenia:

According to a Saferworld report Slovenia has had problems regulating SALW on its territory, and the number of shipments that have been intercepted and confiscated led to suggestions that "many others have slipped though" and that Slovenian territory is an important transit route for weapons going to and from the former Yugoslavia. (90) However, the number of seizures of illicit SALW on Slovenian territory and at border points does indicate that security and prevention measures are yielding results. In autumn 1999, arms smugglers were caught on the Croatian-Slovenian border with approximately 5,000 handguns.(91) More significantly, in September 2001, Slovenian customs officials in the port of Koper detained an enormous 48-ton batch of smuggled infantry weapons sent from Malaysia, which police believe were destined for Macedonia and Kosovo.(92)

Hungary:

A positive example of transit control in action is that of the Hungarian Border Guard Centre (HOP) which intercepted a shipment of missile parts and military equipment carried by Turkish trucks as they entered Hungary from Romania.(93)In early 2004, the trucks were intercepted because they did not have the correct NATO or Hungarian Military transit documentation. The final destination of the equipment was reported to be a West European military base. The trucks were reported to be stranded on the border at Nagylak and would not be permitted to enter Hungary until the correct transit documentation was presented.

Kaliningrad

Kaliningrad is an enclave of the Russian Federation bound by Russian Federal laws on arms control and trafficking. The enclave will become "trapped" in the newly expanded EU and could provide a dangerous control "black hole" for unscrupulous arms traffickers to utilise. It has reportedly served, in the past, as a transit point for shipments of military equipment and arms from other parts of Russia, Lithuania and beyond, for illicit end-users. (94)

Violating EU Code Export Criteria

The Netherlands:

To comply with the EU Code, the Dutch government has stated that it prevents the export of equipment which might be used for internal repression or international aggression, or contribute to regional instability.(95) However there is concern that these principles are not extended to the Dutch arms transit policy. For example in 2002 Israel was granted export licences worth 1.46 million euros, approximately half of the licensed Dutch transit trade.(96) The licences were granted for goods under the category A2, which are those connected with armoured vehicles. This is despite the consistent reporting by human rights organisations of the misuse of such equipment by the Israeli security forces.(97)

On 16 May 2002, a Dutch court in The Hague heard summary proceedings filed by twenty-one civil society organizations including Novib (Oxfam Netherlands), to ban all export and transit of military goods to Israel. The Dutch government has so far refused to comply with the demands. The claim was declared inadmissible and the NGOs were advised to turn to a "board of appeal of the business community", which also ruled the case inadmissible.

According to information from Amnesty International (Netherlands) and Novib at least a quarter of all import and export of goods in and from the European Union pass through the Netherlands. (98) They describe the Netherlands as "the distribution country and main port of Europe". Trans-shipment of goods constitutes about 40 percent of all Dutch exports. Now that Europe's internal borders are becoming less important, the Netherlands is an even more attractive location for international business, at the heart of the European distribution network.

Seagoing vessels annually carry tens of millions of tonnes of goods in and out of Rotterdam, one of the largest ports in the world, which handles almost 20,000 containers each day.(99)

Following several publicised cases of arms trafficking,(100) Dutch NGOS and parliamentarians have also raised concerns that their authorities do not have adequate control on the massive flow of cargo through the country. Only three percent of the 20,000 containers that are processed daily in Rotterdam are actually scanned. On 1 January 2002, the Dutch government has established new controls on trans-shipment of arms and security equipment, which are detailed under the Strategic Goods Import and Export Order. These form a relatively complex administrative process of licenses and notifications for some, but not all, types of arms and also depend on the length of time the goods are in transit on Netherlands territory. Generally:

A) For the transit of arms an export licenseis compulsory, (apart from exceptions covering ‘fast transit’ between close allies: i.e. temporary storage of shorter than 45 days if transport by sea or 20 days by other transport means and if the goods come from the EU or are going to Australia, Japan, New Zealand, Switzerland or an EU or NATO country.)(101)

B) For small arms and light weapons a notification,(102)including an end use notification, to the Dutch authorities is always compulsory.

C) When the government is suspicious of an individual delivery it can enforce an export licenseon that particular shipment, this on a so-called ad hoc basis.(103)

In 2003 an independent evaluation report stated that there was not enough knowledge on the volume of so-called "fast transit" and that the control of small and light weapons was more extensive than control of other types of arms.(104) The report states that the transit of "heavy" arms, such as tanks, does not require mandatory notification because such "heavy" arms can be noticed more easily by customs services. When transit appears to be suspicious it is assumed that customs authorities will intervene.

This system means that there is no registration of many of the arms shipments that transit through the Netherlands. The State Secretary of Economic Affairs argued in a letter to the Dutch Parliament on 21 July 2003 that it is "unrealistic to provide a full overview of transit of arms and military goods through Netherlands territory" because this would mean an "administrative burden" on government and business. However, due to the "war on terrorism", checks on trans-shipments to the United States have been extensive. Since 22 August 2002, the Central Service Import and Export received 24 "notifications" to transit small arms and light weapons from Israeli Airways for shipments originating in the United States with destination Israel.

Dutch parliamentarians have called on the government to bring all transit of arms through the Netherlands under Dutch arms export policy. The government, specifically the responsible ministries of Economic Affairs, Foreign Affairs, Justice and Finance, maintains that the Netherlands is a "distribution country" and cannot possibly control every item that is transferred through Dutch territory. It is, according to the government, also impossible to enforce its own policy upon third countries, unless there is reasonable risk. During the last parliamentary debate on arms exports in November 2003, the minister of Foreign Trade stated that she intends to implement a system whereby the Dutch authorities must be notified about transits of all items on the list of military goods, not just small arms and light weapons (as per point B above). Although this might improve transparency, some Dutch parliamentarians and NGOs want compulsory licences for all transits, rather than just notification that they are occurring.

Key lessons to be learned:

An experienced arms trade analyst concluded"that the majority of Member States were unwilling to tighten controls on goods in transit on the grounds that this could threaten the competitive position of Europe’s ports."(105) However, the overall economic interests of EU Member States and others will be harmed if the EU fails to prevent diversion, illegal trafficking and the "authorised" transfers of arms to users who commit serious human rights violations, or war crimes.

According to the EU Code’s Operative Provision 10, "It is recognised that Member States, where appropriate, may also take into account the effect of proposed exports on their economic, social, commercial and industrial interests, but that these factors will not affect the application of the above Criteria." In the 2002 EU Consolidated Annual Report, it was stated that the Criteria of the EU Code of Conduct should be taken into account when considering transit licence applications.(106) While all EU Member States should apply the Criteria to arms transiting through their country as they would for arms exported directly, this form of words - "take into account" - is generally too weak and open to abuse.

EU States must apply binding Criteria to arms in transit and agree Operative Provisions in the EU Code to adequately control the transit of arms. The success of such controls depends upon harmonising regulations, closing loopholes and co-operation between the transit states and the importing and exporting states. The EU must also prioritise cooperation with the new Member States and Russian Federation on measures to combat illicit trafficking. These should include regular information exchange on export and transit controls and licences.

5. Arms brokering and transport services

Amnesty International and other NGOs have repeatedly documented the impact of arms brokers operating from Europe in fuelling human rights abuses in many parts of the world.(107) From the genocide in Rwanda to the bloody conflicts in Liberia, Sierra Leone and the DRC, brokers have taken advantage of the lack of effective export controls within the European Union.

Arms brokers are experts at using "shell" companies, shipping agents and distributors to arrange the sale of arms and weapons to human rights crisis and conflict zones. Because of the lack of effective controls at the national, EU and international level, the brokers, transportation agents, intermediaries and those providing financial services for such third party arms transfers rarely break export laws and can operate with impunity despite the serious human rights abuses caused by such arms transfers.(108) The following cases illustrate the concerns that Amnesty International has regarding the weak or non-existent controls on arms brokering.

Italy:

On 5 August 2000 Italian police arrested arms broker and dealer Leonid Minin, near Milan. Documents found in his hotel room reportedly detailed illegal sales of arms to the Revolutionary United Front (RUF) in Sierra Leone. (109) The RUF have committed widespread and gross human rights abuses against civilians in Sierra Leone and have been subject to a UN embargo. However, despite the evidence against him, Minin was released in December 2002 as the Italian Supreme Court argued that it could not prosecute him because the trafficked weapons had not touched Italian soil and were not covered by Italian law.(110)

France:

In September 2003, the Angolan government appointed French billionaire businessman Pierre Falcone as its ambassador to UNESCO.(111) This was a highly unusual act as Falcone was then, and still is, under investigation by the French authorities for illegal arms trafficking to Angola. UNESCO representatives expressed their shock and dismay at this appointment, adding it was unacceptable that an arms trafficker was now a member of the agency.(112) In November 2003, French actress Catherine Deneuve resigned as UNESCO Goodwill Ambassador protesting Falcone's nomination.(113)

Pierre Falcone’s involvement in the "Angolagate" scandal came to light when French judicial officials found that Brenco International, a company owned by Falcone, was involved in arms transfers to the Angola government and had made payments to a number of his French associates.(114) Falcone was a consultant to the French government agency SOFREMI, which exports military equipment under the auspices of the French Interior Ministry. He had also developed good contacts in the Eastern European arms business through Russian émigré businessman Arcadi Gaydamak who was based in Israel. In November 1993, Pierre Falcone and Arcadi Gaydamak had allegedly helped arrange the sale of small arms to Angola worth US$47 million. In 1994, they reportedly arranged a second deal for US$563 million-worth of weapons, including tanks and helicopters. The Angolan government reportedly paid for the weapons with oil.(115) The civil war in Angola has taken the lives of hundreds of unarmed civilians each year at the hands of both government forces and the National Union for the Total Independence of Angola (UNITA). Human rights abuses reported included torture, mutilation, abductions and killings. In 2001 alone, the armed conflict and insecurity were responsible for 300,000 people being forced to flee their homes, bringing the number of internally displaced people to four million.(116) In December 2001, Falcone was released on bail whilst the French authorities investigated charges that he broke French arms control laws between 1993 and 1994. He was placed under investigation again in April 2002 for illegal arms trading in the post 1994 period.

Falcone's lawyer argued that Falcone has total immunity from prosecution because of his new status as an Angolan diplomat. However the French authorities have said the immunity only covers acts related to his diplomatic functions. On 14 January 2004 France issued a global arrest warrant for Pierre Falcone. The arrest warrant was issued after Falcone reportedly refused to appear before a judge and left France, breaching his probation terms.(117) Despite such actions Amnesty International is still concerned that France does not have adequate laws covering the brokering of arms transfers outside French territory by French nationals and residents.(118)

Photo caption: A seriously injured boy has his wounds dressed at the hospital in Gamba, Bie province, Angola in June 2002. The civil war in Angola took the lives of hundreds of unarmed civilians each year at the hands of both government forces and the National Union for the Total Independence of Angola (UNITA). © Francesco Zizola, Magnum Photos

Czech Republic:

Following a joint Czech-German-Swiss investigation in August 2002, two Czech nationals were arrested in the Czech Republic and a Russian arms broker with Canadian citizenship was arrested in Germany. The three were accused of engaging in a criminal conspiracy to broker the sale of Russian and Bulgarian weapons to Middle Eastern countries beginning in 1999. Czech officials declined to name the destination countries for the weapons, but a Czech parliamentarian confirmed to the Christian Science Monitor that the weapons were suspected to have gone to Syria, Iran, and Iraq.(119) They reportedly did not pass through Czech territory, but the sales allegedly were brokered through the Czech branch of a Canadian company. None of the deals were licensed by Czech authorities because the company was only registered to conduct marketing activities.(120)

Arms transport services

The brokering of international arms transfers, especially for illegal or illegitimate clandestine purposes, is very closely associated with deliveries of cargoes by sub-contracted arms transporting businesses. Thus, arms brokers often operate their own arms transport networks, or deal with their trusted cargo charter operators, freight forwarding agents, and insurers.(121) Not all the sub-contractors will be equally informed of the details of such dubious arms deliveries, but usually the key actors on arms transporting will be "in the know". Despite this, few EU governments appear to have specific controls on arms transporters other than the customs and transport safety mechanisms for moving regular goods across their own borders.

Denmark :

In March 2003, a cross-party parliamentary group in Denmark challenged both the Minister of Justice and the Minister of Foreign Affairs as to why Danish shipping companies were continuing to transport arms to countries such as Myanmar, China, and Sudan. Despite these countries being subject to EU embargoes that prohibit the export of weapons to repressive governments, Danish shippers are circumventing the legislation by claiming that they are only transporting, not exporting, weapons. A spokesperson for the Stockholm International Peace Research Institute (SIPRI) stated that: "Denmark is one of the only countries where ships carrying arms are allowed to sail to countries blacklisted by the EU."(122)

Ireland:

In 2002, the involvement of an Irish registered company with an international arms smuggling operation was revealed. The company, Balcombe Investments Limited, owned the aircraft operated by Renan Airways of Moldova to fly several shipments of illegal arms to Africa. (123)

In December 2000, a United Nations report briefly mentioned suspicious dealings involving Renan Airways. A subsequent UN report on the arms embargo on neighbouring Liberia, confirmed those suspicions, identifying Renan Airways as having flown unauthorised cargos of arms from Moldova to Liberia. The report also detailed how Renan Airways had worked with another company, Central African Airlines - owned by former KGB officer Viktor Bout - to ship illegal arms to Sierra Leone.

Balcombe Investments was registered in Ireland in 1992 by a Dublin-based company formation agent on behalf of an Isle of Man company, Portman Consultants Ltd. Company formation agents are not generally aware of the activities of their client companies and would have had no knowledge of Balcombe's arms trade link. The day after Balcombe Investments was formed it got a new set of directors based in the Channel Islands and employed by Portman Consultants. From then on Balcombe Investments was essentially a company of convenience which was used to register aircraft in Moldova.(124)

When contacted by the Irish Examinerand asked about illegal arms sales to Africa, a Renan spokesman said: "Balcombe Investment have some aircraft. We transport cargo world-wide, they are the owners and we are the operators. It is an offshore company, so they acquire some aircraft and register it in the Republic of Moldova."(125)

EU initiatives to control brokers, transportation agents and financiers:

Currently, the majority of EU Member States still do not effectively regulate the activities of arms brokers and transportation agents. According to a recent survey by GRIP and Pax Christi only Austria, Belgium, Finland, France, Germany, The Netherlands and Sweden have specific controls on brokering of conventional arms – though a number of other EU states such as the UK have been in the process of enacting some controls. (126) Elements of best practice seem to be found in the Finnish, Belgian, Swedish and German controls. It should be noted thatsome new Member States have also instituted new legislation or administrative controls on arms brokering that, on paper, appear to be in advance of many of the EU Member States.

Belgium: good practice regarding extra-territoriality

Arms brokering activities in Belgium fall under the March 2003 amendment to the 1991 Law on the Import, Export, Transit and Combat against Trafficking in Arms and Ammunition. Weapons covered by this law include military small arms and light weapons as well as related ammunition. Belgian nationals as well as foreign residents and dealers in Belgium require a license to negotiate, export or deliver abroad, or possess to this end, military equipment, or intervene as intermediary in these operations, irrespective of the origin or destination of goods and whether or not the goods enter Belgian territory. An intermediary is whoever, for profit or free of charge, creates the conditions for the conclusion of a contract entailing the above operations, or whoever concludes such a contract if the transport is undertaken by a third party. All persons and entities wishing to trade arms and ammunition require a prior registration.

Persons found guilty of arms brokering without a licence outside Belgian territory can be prosecuted if the accused is found on Belgian territory even if the Belgian authorities have not received a complaint from the foreign authorities. Violations and attempted violations of the Belgian legislation on arms brokering are punishable by imprisonment of up to five years and/or a monetary fine.(127)

Slovakia:

Following the numerous arms scandals reported by the UN and others, legal reforms were adopted in July 2002 imposing brokering controls for the first time. The law provides that only Slovak individuals and companies can act as arms brokers and subjects them to the same two-tiered licensing system as has been applied to arms trading companies. These brokering controls are intended to apply to arms deals carried out by Slovak arms brokers, even where the weapons do not pass through the territory of Slovakia. (128) However, it is still debatable whether these reforms are yet being put into practice.

Although a number of EU states have made positive attempts to regulate the activities of arms brokers and transportation agents, there is a real danger that their controls will be undermined by other states in the EU that have not yet adopted such controls, or have adopted weaker controls. As the previous case studies show, arms brokers are adept at finding the weaknesses of control regimes.

Box: United Kingdom brings in flawed controls on arms brokers

On 24 July 2002, the Export Control Act was promulgated replacing the outdated 1939 law that previously regulated UK arms exports. Among other things, the new law brings the activities of UK-based arms brokers under the control of the government for the first time. However, the proposed secondary legislation indicates that the government does not intend to control all UK brokering deals, despite an election manifesto pledge to 'control the activities of arms brokers and traffickers wherever they are located.' Instead, when the deal takes place abroad or offshore, the UK government has opted to control only deals involving torture equipment, embargo-breaking and long-range missiles. While this is a welcome move, it leaves deals involving all other types of conventional weapons to non-embargoed destinations unregulated.

The need for such powers to be extended to non-embargoed destinations is demonstrated by the case of Essex based arms-dealer, Mick Ranger, who has run a lucrative arms brokerage with operations in Bulgaria, Cyprus, Nigeria, Australia, South Africa and Vietnam.(129) He was reported to be prepared to organise the transfer of 200 rifles from Bulgaria to Syria, despite the fact it was "clear the weapons might be used in Iraq." (130) However, Ranger ‘would not agree to any deal where Iraq was mentioned in official documents.’ If any potential deal had been made by any of his overseas offices it would not be subject to the UK legislation.

Under the proposed new law, UK arms brokers acting abroad will not need to apply for a licence to transfer weapons to a country neighbouring an embargoed destination. As pointed out by Saferworld, "in order for the proposed legislation to be effective in this regard, the government would have to prove that the broker knew that the ultimate end-user was an embargoed entity, which is likely to be very difficult indeed. Such a loophole could undermine one of the main rationales behind the current proposals, ie that UK persons should not be able to broker arms to embargoed destinations". (131) In the absence of such proof of intent, there will be nothing to stop an arms broker living in Northern Ireland from stepping over the (open) border to the Irish Republic, brokering a deal there, and then stepping back again to Northern Ireland for his tea. Neither Irish law (which does not control brokering at all) nor the new UK law (which would not have the extraterritorial reach) could stop this.

European efforts to secure other international controls on brokering

Following the lead taken by Norway in the Oslo Meetings of like-minded states since 1999, EU Member States have recognised the need for coordinated regional and international measures to control arms brokers. For example in March 2001, the Swedish government (then acting EU President) introduced a submission to the Preparatory Committee for the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons committing the European Union to introducing a legally binding instrument on arms brokering.(132) Unfortunately the EU proposal foundered in the UN due to opposition from states such as the US, China, Russia and the Arab League.

Nevertheless, the EU proceeded to develop and agree in June 2003 what is considered to be a legally binding "Common Position" on arms brokering (see below), the OSCE agreed in September 2003 a Best Practice Guide on National Control of Brokering Activities, and the Wassenaar Arrangement agreed in December 2003 a set of common Elements for Effective Legislation on Arms Brokering.

This flurry of activity was propelled by NGO campaigning and the concerns of some governments, including in the EU, especially about international organised crime and terrorism.(133) A further significant factor has been the example shown by the USA, which has the most comprehensive law on brokering, introduced in 1996 as an amendment to the Arms Export Control Act. This law covers a wide range of activities and incorporates a strong extra-territorial component that: "requires US brokers living anywhere and foreign nationals residing in the United States to register and obtain licenses for all arms deals they transact. Not only does the law empower US implementing and enforcing agencies to keep tabs on the number of brokers and the type of their operations, it also subjects violators to US jurisdiction wherever an offence has been committed."(134) There is anecdotal evidence that the US law has acted as a deterrent to private US nationals and residents engaging in illegal trafficking, but most EU governments are not yet willing to embrace similar laws.

Wassenaar Arrangement

In December 2003, the Wassenaar Arrangement (WA) - the group of leading conventional arms exporting countries, including many EU and new Member States - agreed a set of common Elements for Effective Legislation on Arms Brokering.(135) Although this is only a politically binding agreement, WA Participating States agreed to: "Strictly control the activities of those who engage in the brokering of conventional arms by introducing and implementing adequate laws and regulations."

The focus is on controlling brokering activities in "third countries", although it falls short of requiring wide extra-territorial controls. "For activities of negotiating or arranging contracts, selling, trading or arranging the transfer of arms and related military equipment controlled by Wassenaar Participating States from one third country to another third country, a licence or written approval should be obtained from the competent authorities of the Participating State where these activities take place whether the broker is a citizen, resident or otherwise subject to the jurisdiction of the Participating State…Similarly, a licence may also be required regardless of where the brokering activities take place."

"Records should be kept of individuals and companies which have obtained a licence...[and]... Participating States may in addition establish a register of brokers."

"Where brokering provisions do not currently exist, Participating States will work without delay to introduce appropriate provisions to control arms brokering activities."

The EU Common Position on Arms Brokering:

Amnesty International has repeatedly warned EU governments that unscrupulous arms brokers will just find the EU country with the weakest controls in the newly expanded Europe to conduct their business and so, in order to help protect human rights, a common high level of control is needed throughout the enlarged EU. With the adoption in June 2003 of an EU Common Position on Arms Brokering, EU governments took a significant first step towards a binding international regulation. (136)

Under this Common Position EU member states are now required to "take all the necessary measures to control brokering activities taking place within their territory." The lawful engagement of such activities will require "a license or written authorisations…from the competent authorities of the Member State where these activities take place" and Member States will assess applications "for specific brokering transactions against the provisions of the EU Code of Conduct on Arms Exports."

Amnesty International welcomes this Common Position as a first step but is concerned that the agreement has a number of fundamental weaknesses that, if not corrected, will seriously undermine its effectiveness, namely:

· It only encourages, but does not oblige EU Member States to "consider controlling brokering activities outside their territory carried out by brokers of their nationality resident or established in their territory" and no mention is made of controlling EU citizens who both reside and broker abroad.

· It is left to the discretion of member states to decide whether to register arms brokers, thereby losing the advantages of a compulsory register, kept by each member state, that would help ensure that bona fide arms brokers are kept abreast of changes to export control law and those applicants with criminal convictions in related activities are refused permits; this would also greatly assist effective cross-border information-exchanges to prevent illicit trafficking.

· It omits the key ancillary services upon which arms brokering depends, such as arms transportation, shipping and financial services, thereby reducing the chances of curbing networks of brokers and their partners who may be complicit in illegal trafficking or supplying foreign customers contrary to the EU Code Criteria.

Lessons to be learned:

The EU Common Position is an important step forward in the fight against unscrupulous arms brokers and all EU Member States must implement it fully without delay. However, Member States will have to address, during the ongoing review of the EU Code, the three major problems with the Common Position outlined above if they are to effectively prevent the illegitimate and destructive activities of arms brokers and their associates. As numerous UN reports on arms embargo violations have illustrated, without these three areas of control such actors easily create clandestine international networks across continents using tax havens to reap profits including from arming known human rights abusers and war criminals. Finland, Belgium, Slovakia and Sweden have already enacted legislation that incorporates an extra-territorial element and there is no reason why such elements cannot be adopted throughout the EU.

6. Licensed Production Overseas

Licensed production overseas(137) (LPO) is the process whereby a company in one country allows a second company in another country to manufacture its products under licence. In terms of efforts to prevent irresponsible weapons proliferation and transfer within or from the EU, LPO is of particular concern since it involves setting up new centres of production and the spread of technology over which the government of the licensor company may have little or no control. The EU and the new Member States, have allowed LPO agreements to spread around the world for the manufacture of a wide range of MSP equipment ranging from body armour, machine guns, frequency hopping radios to helicopters and high-tech missile systems.

Criterion 7 of the EU Code requires Member States to consider the "risk that… equipment will be diverted within the buyer country or re-exported under undesirable conditions," and to consider "the capability of the recipient country to exert effective export controls." However, there is no Operative Provision in the Code to address the massive risks posed by the spread of LPO. The cases below illustrate how the lack of governmental control in this area can result in arms, ammunition or security equipment - made under licence from EU or new Member State companies - being transferred to human rights violating forces abroad.

France, Belgium, India and Nepal:

The Indian company, Hindustan Aeronautics Ltd (HAL) manufactures the Cheetah helicopter under licence from the French company Aerospatiale. This helicopter uses the Artouste IIIB engine, which is also manufactured by HAL under licence from Turbomeca (France).(138)

HAL also produce the Lancer Helicopter, which is reported to be an upgraded version of the Cheetah.(139) The Lancer is a light attack helicopter developed by HAL as a cost effective airmobile area weapon system. The company reports how the basic structure of the Lancer is derived from the reliable and proven Cheetah Helicopter and claims that the Lancer is optimized for anti-insurgency operations, close air support, suppression of enemy fire, attack on vehicular convoys, destruction of enemy machine gun positions and anti-armour applications. Each pod carries one 12.7 mm gun and three 70 mm rockets and has a firing rate of 1100 rounds per minute.(140) It was reported in 1999 that the gun/rocket pod fitted on the Lancer attack helicopter was "an FN Herstal product".(141) It is unclear what, if any, end-use control and parliamentary reporting has been provided to the French or Belgian parliaments.

In June 2003, it was reported that the Indian government had delivered two Hindustan Lancer light helicopters to Nepal. The reports stated that, although delivered for use by the Royal Nepal Army (RNA), the helicopters would have a law enforcement role and would undertake paramilitary surveillance and police patrol as well as army operations.(142) Other reports claimed that Nepal had obtained the helicopters, cost-free from India, as one of the main components of Indian aid for Nepal government’s campaign against the Maoist rebels.(143)

It is currently unknown whether the Lancer attack helicopters have been used in any live fire attacks. However Amnesty International reported how "in the period immediately following the declaration of the state of emergency, there were several reports that civilians had been shot dead by the army from helicopters". In one such incident reported on 30 November 2001, "five civilians… were killed by shooting from an army helicopter while they were observing a religious festival (Baraha pooja) at Meldhara, Rolpa district. After widespread protests against shootings from helicopters, such incidents stopped being officially reported".(144) Other reports have indicated that the army helicopters have continued to be used since then.(145)

Germany, Belgium, France, Spain, Czech Republic, Turkey and Indonesia

The German company Heckler and Koch (H&K) has engaged in a number of licensed production arrangements with the Turkish state-owned arms manufacturer, MKEK. In 1998, for example, Heckler and Koch won an $18 million, ten-year contract for the licensed production of 200,000 HK33 5.56mm assault rifles in Turkey.

In 1998 the Turkish News Agency reported that MKEK was exporting 500 H&K MP5 sub-machine guns to the Indonesian police. These weapons were subsequently shipped to Indonesia at the very height of the massacres in Timor Leste in 1999. The MKEK deal was announced just a few months after the UK government had denied licenses for the same weapons to the Indonesian Armed Forces. The MKEK transfers took place just as the EU was agreeing to introduce an arms embargo on Indonesia. This came into force on 16th September 1999 and meant that neither Heckler & Koch in Germany or the UK would have been allowed to export MP5s to Indonesia, but the same weapon, made under a H&K license by MKEK in Turkey, could be transferred to the Indonesian security forces then engaged in widespread and systematic human rights violations.

On 23rd August 2000 the Turkish Minister of Defence signed a contract with a consortium of companies from Germany (Fritz Werner), Belgium (New Lachausee) and France (Manurhin) to install an ammunition manufacturing plant in Turkey. The plant will be run by MKEK and the lead foreign company will be Fritz Werner of Germany. This licensed production deal, which is estimated to be worth between 40 and 45 million euros (approximately US$35.9 million to US$40.4 million), will give MKEK the ability to produce 5.56 mm calibre ammunition for assault rifles.(146) It was further reported that Santa Barbara (Spain) was selected as the licensing firm for the gunpowder.(147)

The German, Belgian and French companies have all been granted export licences by their respective governments to fulfil this contract. It still remains far from clear how, if at all, the governments of Germany, Belgium and France will ensure that MKEK will not export ammunition to forces likely to use them for human rights violations. Among MKEK’s other clients have been the governments of Burundi, Libya, Pakistan and Tunisia – all countries where Amnesty International has reported serious human rights violations by the security forces.(148)

MKEK is not the only Turkish company engaged in licensed production agreements with European companies. The Czech company Ceska Zbrojovka (CZ) has set up licensed production in Turkey of the CZ 75 B 9mm Luger pistol with the Turkish company Roketsan. The pistols were first exhibited at the IDEF 2001 arms exhibition in Ankara in September 2001.(149) A range of 10 pistols was subsequently on display at the IDEF 2003 exhibition with a Turkish name – TRUVA.(150) According to Jane’s Infantry Weapons 2002-3, the CZ 75 is in use with the Czech police and police forces in various countries.(151)

Turkey lacks effective arms export controls based upon respect for international law and, despite its formal adherence to the EU Code, there is a real danger that the government will continue to allow the export of significant quantities of small arms and ammunition, many produced under licence from European companies, to security forces in other countries that persistently commit human rights violations.

United Kingdom and Pakistan:

In 1998 it was revealed that Pakistan Ordnance Factories (POF) was producing complete L64 105mm APFSDS (Armour piercing, fin stabilised, discarding sabot) tank rounds using a technical data pack supplied by the UK company, Royal Ordnance.(152) A report in Jane’s Intelligence Review(JIR) in 2000 reported that "technology from the UK, Sweden and Belgium has resulted in improvement in advanced tank (and artillery) ammunition, which is produced in increasing quantities by Pakistan Ordnance Factories (POF) for domestic use and growing exports".(153) [Emphasis added].

Another JIR report stated that a 1999 shipment from POF had supplied Myanmar – where widespread and systematic human rights violations have been reported -with a range of ammunition for both small arms and artillery, including 105mm ammunition.(154)

In 2001, a Sri Lanka newspaper highlighted how Pakistan had supplied a range of military armaments including the Heckler and Koch G3 rifle (manufactured under license by POF), 120mm heavy mortars and hundreds of thousands of mortar and artillery ammunition, when other suppliers such as the UK had been reluctant to provide such arms.(155)

During the conflict between the Sri Lankan army and the Liberation Tigers of Tamil Eelam (LTTE), Amnesty International documented many cases of civilians being killed by indiscriminate bombing and shelling.(156) Whilst it is not known whether tank ammunition shells were used in these cases, Amnesty International remains concerned that that UK tank ammunition, produced under licence in Pakistan, can be exported to security forces, who may use it for serious human rights violations or breaches of international humanitarian law.

The present UK government has refused to adequately answer parliamentary questions seeking to establish when the licensed production agreement was established and if it is still current. In February 2002, the UK Trade Minister claimed "It would be inappropriate to comment on any such agreement entered into during the time of a previous Administration. In any case this is a matter between Royal Ordnance and Pakistan Ordnance Factories."

However, the Minister did make clear that "an export licence is not required from the Department of Trade and Industry's Export Control Organisation to export items from Pakistan to a third country."(157) This interpretation clearly undermines the purpose of the EU Code.

Ireland, South East Asia and Turkey:

On 22 June 2000, the Minister of State at the Department of Enterprise, Trade and Employment (DETE) was asked about the Irish government’s views on licensed production. The response noted that there are no harmonised EU controls on licensed production agreements and went on to state that "while I have no reason to believe Irish companies avail of licensed production agreements to avoid our export controls system, I would, in principle, support the introduction of uniform controls on licensed production within the EU."(158)

However in September 2003, the ‘Briefing Note on the Public Consultation Process on Ireland’s Export Licensing for Military and Dual-Use Goods’ stated that: "Ireland has no specific controls in this area, although important activities associated with this issue are subject to control".(159) Amnesty International is concerned at the lack of progress or political will from the Irish government on this issue.

Ireland has at least one company making extensive use of such LPO agreements. The Timoney Technology Group, based in Navan, County Meath, designs and develops a variety of armoured vehicles for military and commercial applications. Timoney's range of high mobility vehicles includes armoured personnel carriers, combat support vehicles, heavy transporters, and airport crash fire rescue vehicles.(160) The company’s chief executive, Shane O'Neill, stated in January 2001 that 60 per cent of Timoney’s sales currently went to the military, although he was hopeful that commercial sales would also increase. (161) Such diversification includes the contracts signed in 2000 to transfer technology to the Beijing Heavy Duty Truck Co in China for the manufacture of a new all-terrain, heavy duty truck.(162) Amnesty International is at present unable to identify the end user of these vehicles.

In September 2001, Timoney exhibited the Bushmaster troop carrier, built by its Australian licensee ADI Ltd at the UK Defence Systems Equipment International (DSEI) exhibition, for the first time outside Australasia. ADI recently won a contract from the Australian government for 350 armoured troop carriers. Whilst Amnesty International has no present concerns regarding the use of such vehicles by the Australian military, the fact that an Australian licencee is now manufacturing and marketing this vehicle to governments – particularly in the Asia Pacific rim – is of potential concern. (163)

Timoney design technology was also on display as part of the prototype Terrex AV8I armoured fighting vehicle that was exhibited for the first time at DSEI 2001. This vehicle is the product of collaboration between Timoney Technology Ltd and the Singapore company, ST Kinetics.(164) Shortly after the exhibition, ST Kinetics announced that it would take a 25% shareholding in Timoney Holdings Ltd, the parent company for Timoney Technologies.(165)

Australian Bushmaster vehicle, at Defence Systems International Exhibition, London, 2001 © Robin Ballantyne

It was also announced in October 2003 that ST Kinetics and Turkey's Otokar Otobus Karoseri Sanayi AS (Otokar) had concluded co-operation agreements for two vehicles aimed at meeting the requirements of the Turkish Land Forces Command (TLFC). The first agreement involved development of an enhanced variant of the ST Kinetics Terrex infantry fighting vehicle. The Turkish version of the Terrex, to be called the Yavuz, involves joint design, manufacturing and marketing.(166)

Thus it would appear that Timoney’s technology, licensed to ST Kinetics, may well be used in the production of a range of vehicles for the Turkish military, who in the past have used such equipment to facilitate human rights violations. At the Kurdish New Year celebrations in March 2002 in Mersin, for example, Mehmet ªen was killed by a tank that crushed him against a wall.(167) Unless the Irish export controls are rapidly changed, it is likely that this will take place with no debate or authorisation from the Irish government or parliament.

The Irish Parliament has literally no idea of the number and scale of such agreements. The table below shows the export licences granted for the "military list" category ML6 which covers the type of armoured vehicles that Timoney designs.

Irish Export licences issued for ML6 category. 2000 – 2003
Export License category
2003200220012000
Nigeria		1
Northern Ireland		1
Serbia & Montengro	2
Singapore	2	3
Switzerland	1
Taiwan		1
UK	1	1	1
United States	1	3

If Irish parliamentarians relied solely on the information gained from export licences issued, they would get a limited and highly misleading picture of Irish involvement in the manufacture of armoured vehicles and the possible impact on human rights.

Austria and Bulgaria:

The Austrian company Hirtenberger AG manufactures and sells a range of mortars and mortar ammunition. Its exports of mortars must be licensed by the Austrian government. The Arsenal JSC company in Bulgaria states that it produces 60mm and 80mm mortars under licence production agreements from Hirtenberger.(168) The mortars are also marketed by the Bulgarian arms agency Hemus.(169)

Given the Bulgarian government’s inability over recent years to adequately regulate its arms industry and the cases of irresponsible arms transfers by Bulgarian companies in breach of UN arms embargoes and to human rights abusers,(170) Amnesty International is gravely concerned that this licensed production agreement could result in Austrian mortars, produced under licence in Bulgaria, being diverted to illicit end users. The Hirtenberger mortars produced under licensed production by Arsenal have recently been offered for sale by the Carigroup.(171) Given the lack of adequate reporting of prospective arms exports in Bulgaria, the Bulgarian parliament will not be able to discover to whom such weapons are exported. It is unclear to what extent the Austrian government is consulted (if at all) regarding the export of Hirtenberger mortars, made under licence by Arsenal, to other countries.

Lessons to be learned:

If current trends continue, the number of licensed production arrangements will continue to increase, and the means by which production technologies and component parts will be made available to licensed production facilities are likely to become more varied and difficult to control. The fact that LPO risks not only the proliferation of arms but of arms production technology and capacity, makes effective control of these arrangements of critical importance.

Despite the grave risks of these trends for the protection of human rights, the EU has been slow to act to adequately control LPO. However in the third EU Consolidated Report in 2001 an undertaking was finally made to "study the problem of manufacture under licence in third countries". (172) Subsequently the fifth Report in 2003 did contain an agreement by Member States that "when considering licence applications [for exports] for the purposes of production overseas of equipment on the Common Military List, account will be taken of the potential use of the finished product in the country of production and of the risk that the finished product might be diverted or re-exported to an undesirable end-user." (173) Although this does not refer to LPO as such, it would in most cases be relevant to licensed production arrangements entered into where the licensor is an EU-based company. This is a welcome step, but not enough to sufficiently control LPO.

The EU Member States should follow and promote internationally the "best practice" on this issue. In the United States, for example, licensed production (or "manufacturing license") agreements are treated as physical exports and require prior approval from the US State Department. The US licensed production contracts usually limit production levels and prohibit sales or transfers to third countries without prior US government consent. There is also provision, albeit limited,(174) for prior Congressional approval of licensed production deals.

Amnesty International calls on all EU Member State governments to agree a new Operative Provision of the EU Code and to introduce legislation without delay that requires their nationals and companies to seek prior licensing approval for setting up of alllicensed production agreements for the manufacture of arms and security equipment. The criteria used by the government for such production export licence determinations should be as stringent as for direct arms exports and should be based on common Criteria in an enhanced EU Code.

7. Components for Military and Security Systems

The export of MSP components for weapons systems (175) is an ever-increasing part of the global arms market, and effective control of the components trade presents a major challenge for EU Member States if they are to help protect human rights and prevent humanitarian crises. (176) Many countries are often involved in the manufacture of a single weapons system, and components are likely to be less visible in the final product, making it much harder to monitor whether or not such export items have been misused for human rights violations.

Since the end of the Cold War, the global and EU arms industry has undergone wholesale restructuring, leaving it more diversified and internationalised than before. As contractors outsource production, subcontracting, both nationally and internationally, has grown to be increasingly important. Networks have developed internationally, making the existence of a comprehensive production capability within any one country increasingly rare. Weapons systems are now, more than ever, assembled from components sourced from a global market place.

The importance of the trade in components and sub-systems to the defence industry was highlighted in a 1999 submission to a UK Parliamentary Select Committee by the UK Defence Manufacturers Association (DMA): "the UK especially demonstrates great strength in the high technology sub-systems sphere… In consequence, a considerable proportion of defence export contracts won each year have been for subsystems, components, spares, etc and there are very few major Western high technology programmes which do not have some level of British subcontractor participation."(177) Through partnership agreements, offset deals, technology transfer and licensed production agreements many companies in the EU Member States and New Member States have had a growing involvement in the components and sub-systems sector.

Because of the increasing importance of high-tech electronic systems to both military and police forces, many components or sub-systems are now considered to be strategic goods that need to be controlled. Some components are classed as dual-use and licensed under the agreed "dual-use list", (178) others come under the EU "military list". But, worryingly, others are not even considered to be controlled goods.(179) Many EU companies not normally associated with the conventional military or "bombs and bullets" production have significant involvement in the high-tech "dual-use" sector. For example, a recent report on Ireland identified that whilst Ireland’s "military" exports in 2002 were only valued at €34 million the "dual use" exports were valued at € 4.5 billion.(180)

The cases below illustrate how the lack of governmental control of EU components for weapons systems has resulted in such arms being transferred to foreign armed forces that commit human rights violations.

Ireland and Israel:

The US Data Device Corporation (DDC), which has production facilities in Cork, Ireland (DDC Ireland Ltd) states on its website that its MIL-STD-1553 Data Bus products are used in the AH-64 Apache Attack Helicopters.(181) The company describes the important role that their product plays in enabling military aircraft and helicopters to function, so "a MIL-STD-1553 data bus allows complex electronic subsystems to interact with each other and the on-board flight computer. This data bus is the life line of the aircraft"[emphasis added].(182) These systems can include a lethal array of armaments, including a mix of up to 16 Hellfire missiles or 76 70mm aerial rockets and 1,200 rounds of 30mm ammunition for its M230 Chain Gun automatic canon.(183)

Amnesty International has vigorously opposed the transfer of a range of military helicopters from the USA to both Israel and Turkey because these governments permitted their armed forces to use the helicopters for gross human rights violations. Five Palestinians were killed and 15 others injured when Israeli Apache helicopter gunships fired two missiles at a car in a busy part of northern Gaza city on 25 December 2003. (184)

At present it is still not known whether DDC Ireland is supplying military standard data-bus components for incorporation into Apache attack helicopters. To establish whether export licences were being granted for this type of product, Amnesty International asked the Irish Department of Enterprise, Trade and Employment: "What export control category code would apply to MIL-STD 1553 Data Bus products from DDC Ireland Ltd?". In response, the Minister for Labour, Trade and Consumer Affairs, Mr Tom Kitt T.D, stated in a letter that "the question of the appropriate control category code (which should apply to any product), is in the first instance a matter for the producer/exporter to determine as they have the best knowledge of their own products. Therefore, if you wish to know the control category code of any product, I would suggest that you contact the producer".(185) Amnesty International wrote to both DDC Ireland Ltd and DDC (USA) in 2001, but to date has still not received an answer.(186)

Even if Amnesty or Irish parliamentarians could establish the category of Dual Use licence that would be required if DDC were exporting its MIL-STD 1553 data bus products from Ireland, it would now be of little use if these components were going first to the USA for incorporation into the Apache attack helicopters prior to shipment to another country. Since April 2001, the introduction of the EU "Community General Export Authorisation"(CGEA) has meant that the "bulk of the dual-use items subject to export licensing requirements are not subject to individual export" control when destined for the following CGEA countries: Australia, Canada, Czech Republic, Hungary, Japan, New Zealand, Norway, Poland, Switzerland, United States of America.(187) This applies to exports of such components within all 10 states included in the CGEA. Thus, exports of this category of "dual use" component can be exported from Ireland and will not be reported in the current DETE licence statistics.

So there would appear to be nothing to prevent the export of the DDC data bus from Ireland to the US for incorporation into Apache attack helicopters destined for Israel or for any other country where the government permits its armed forces to use military aircraft to indiscriminately attack and target civilians.

The Netherlands and Israel:

Analysis by Amnesty International (Netherlands)(188) has shown that a large part of Dutch MSP exports are components for incorporation into larger weapon systems, mainly to be assembled in the USA which, in turn, is the major supplier of arms to Israel.

The Dutch Minister of Foreign Affairs has stated: "in the request for an export license the end user must be mentioned. When the delivery by another country ends-up in for example Israel, then the export guidelines will be applied for Israel and a negative advice will be given…. conform[ing with] the Dutch policy. In the case [where] the final destination is not known, Foreign Affairs will apply the guidelines on the country where the components are first going to. When this is a country with a solid arms export regulation – an EU member state, a NATO ally – in principle a positive advice will be given to Economic Affairs, but when the country has a unsound arms export regime, this will result in a negative advice. The Minister regards the arms export regime of the US, the biggest and most important ally of the Netherlands, as sound."(189)

The policy is formalised in the Declaration of Principles (DoP) between the USA and the Netherlands, which regulates bi-lateral exports as well as exports to third countries.(190) The US is the biggest customer for military products from the Netherlands so the policy brings roughly 25% of Dutch arms exports under ‘a common’ US-Dutch export policy.

This policy has major consequences for arms control and the protection of human rights. When, for example, Dutch Hellfire Missile components are to be sent to the US for a production run of which some are to be used by the US military and a proportion transferred to third countries, these exports have been viewed as exports to the USA [and therefore deemed acceptable], even though a proportion will probably end up in countries that would be deemed unacceptable and would have been refused a direct arms export licence. The Hellfire is becoming one of the most well known missiles, not least because of its use in trouble spots in Iraq, Afghanistan, Yemen and Israel. The missile is produced by Boeing, Lockheed Martin and Northrop Grumman and a number of subcontractors and exported to thirteen countries.(191) Hellfire Missile exports started in 1997. The biggest Dutch delivery took place in 1999, and was valued at € 3.6 million.

Export records show that in 2001 the Dutch government authorised the export of components for the F16 fighter plane to the USA valued at over 57 million guilders. Since 2000, there have been orders for 344 F16s from nine countries.(192) Due to the lack of transparency in the Dutch reporting of components exports, it is not known whether any of these particular planes incorporate Dutch components, but potentially they could – especially given the Dutch Foreign Minister’s statement on components and end use quoted above.

At least one Dutch company is open about the end-user of its products, on its ethical policy page: "In principle, Philips companies do not produce products or render services specially designed or developed for the military, except for the following products: F16 parts and Apache parts supplied to NATO countries and Israel (under compensation agreements US/Netherlands)."(193) So, although Dutch parliamentarians and the Dutch people are not given the information as to whether Dutch components are incorporated into Apaches that are in action in Israel, this information is known at the Philips headquarters.

Amnesty International is also concerned about the transfer of small arms parts from the Netherlands. The table below describes Dutch export licenses to the USA and shows that significant quantities of components have been transferred. These are believed to include triggers, bolts etc. of pistols, revolvers and rifles which have been produced by a Dutch fine metallurgy company which has exported them to a well-known US small arms producer. The US is one of the world’s major small arms exporters, including to armed forces that abuse human rights. Whilst the Dutch government might take a strong position on the proliferation of SALW, this components loophole means that Dutch small arms parts potentially can be transferred to many countries.

Dutch Export licenses to the United States, related to small arms (2001) (only large deliveries)
Code
DescriptionValue in Dutch Gilders
0001a	Parts of rifles, types [***]	5,708,355
0001a	Cartridge holders, 32 shots, for Uzi rifles cal.9x19	442,584
0001a	Twin barrel bullet hunting rifles, cal....500NE	210,129
0001a	Parts for pistols, type [***]	25,161,581
Note: *** is whitened by government

France, Poland, Russia

In 1996, the French company Celerg (now Roxel) formed a joint project with TM Pressta (Poland) to develop the Feniks-Z 122mm rocket. Celerg was responsible for supplying components for the rocket motor, whilst TM Pressta had manufacturing responsibility for the rocket and for the marketing and deliveries of the rockets worldwide, including for Celerg's existing customers. Under the 1996 agreement, TM Pressta would manufacture 50% of the motor.(194)

The Feniks-Z rockets can also be fitted with a range of Polish-developed warheads. These include a high-explosive warhead, with 6,000 fragments, and a cargo warhead, with 42 high-explosive anti-tank fragmentation bomblets.(195) The rockets can also be used with the Russian-built BM-21 and the Czech RM-70 multiple-rocket launchers and is claimed by the manufacturer to be "10 times more effective than the older rocket, but only five times more expensive".(196)

In 1996, it was reported that Celerg had also established a joint project with Splav (Russia) and would be offering enhanced range ammunition for the world's most widespread rocket artillery system, the 122 mm BM-21 Grad. After two years of work, Splav officials stated that they were ready to enter the export market. The potential for export was significant with around 2 million rockets in service. Celerg officials said that there was a market of 200,000 units over the next ten years. Celerg would supply a new rocket motor design and propellant, while Splav would perform integration and supply a new stabilisation system. The Grad system was reported to be in service with 50 armies around the world.(197)

Russia is one of the countries that uses the Grad rocket systems and in 1996, Amnesty International reported an incident on or around 19 January in Dagestan where the Russian army had launched heavy artillery and Grad rocket attacks on the village of Pervomaiskoe in an attempt to rescue hostages taken there by Chechen fighters. Amnesty considered that the Russian army rocket attacks had signaled the army’s intention to end the hostage crisis by resorting to an indiscriminate attack, without regard for the lives of the civilians in the village and the hostages themselves. The Russian army reportedly secured the freedom of 82 hostages from Pervomaiskoe and the remaining hostages were later freed by the Chechen fighters. The number of civilian casualties remained unknown because the Russian army did not permit journalists and independent observers access to the village during the attack and until after dead bodies of civilians were reportedly cleared from the streets by Russian soldiers.(198)

Amnesty International has documented the continued indiscriminate attacks using Grad rockets by Russian forces in Chechnya. In 1999, Amnesty reported that Russian forces had used airplanes; tanks; artillery; multiple rocket launching systems "Grad" and "Uragan"; and cluster bombs. Witnesses interviewed by Amnesty International claimed that many people had been killed or wounded by fragments from high-explosive artillery shells, many of which had exploded in the air.(199)

Amnesty International remains concerned that France and Poland are supplying components for incorporation into rocket systems that have been used in indiscriminate attacks on civilians in Russia, or other conflict areas.

Belgium and Kenya

In 1988, FN Herstal (Belgium) had signed a construction contract, worth 2.4 billion Belgian francs (approx US $80 million), with the Kenyan government to build an ammunition production factory, capable of producing 20 million rounds per year, at Eldoret in Kenya. However, construction was not completed until late 1995. Subsequently, the Belgian government provided export authorisation for FN Herstal to supply ammunition production machinery for the Eldoret facility.(200)

Concerns regarding the dangers of the inadequate regulation of MSP technology transfer from Belgium to establish the Eldoret ammunition factory in Kenya had been raised by Belgian parliamentarians, NGOs(201) and journalists since mid-1996 when details of the contract became public.(202) On 14 November 1996, following public protests, the Belgian government suspended the issuing of export licenses for weapons transactions to Kenya, Uganda and Tanzania for sixty days. Then, on 27 February 1997, the government announced that construction at the factory would be halted until further notice, pending receipt of formal guarantees from the government of Kenya that it would not sell ammunition to Rwanda, Burundi or Zaire.(203) However, on 8 March, the Belgian government reportedly agreed to the resumption of work at the factory, after receiving written guarantees from the government of Kenya that bullets produced at the Eldoret facility would not be exported to countries in the Great Lakes region. (204)

A 2002 report by GRIP (Belgium) investigating the marking and tracing of SALW stated that "Officials from the UN International Commission of Inquiry on arms transfers in Rwanda interviewed by the authors on 1 October 1998 explicitly blamed Kenyan officials with regard to the provision of supplies from the Eldoret ammunition factory to factions in the Rwanda conflict."(205)

In October 2003, the Kenyan National Security Minister, Chris Murungaru, was reported as saying that the Kenyan government would not close down its bullet factory in Eldoret despite being at the centre of concerted efforts to rid the region of illegal small arms and light weapons. The East Africanhad earlier established that the factory produced three types of bullets, namely, 9mm ammunition for the FN35 Browning pistol and the Sterling, Uzi or H&K MP5 sub-machine guns used by the armed forces; 7.62x51mm for the FN-FAL and the G3, the main rifles used by the armed forces; and 5.56mm ammunition, used by the Kenya police.(206) Amnesty International has documented human rights violations by these forces using small arms.

In February 2002, it was reported that Kenyan police had shot and seriously injured three children who had joined a demonstration against a local playground being taken away by the local administration. The children, aged between 16 and 10, were shot in the hands, legs and thighs by police officers. One of the children's hands was shattered by a bullet from a G3 rifle. The children accused the police of being trigger-happy, saying that they did not attempt to talk to the group before lobbing tear gas and firing live ammunition at them. Such incidents are not uncommon and over the recent years Amnesty International has documented many cases of police shootings and killings in Kenya, some of which may have been extrajudicial executions. It is possible to identify the particular G3 rifle used in this incident from its serial number, but the supply route to Kenya is not known.(207)

Belgium and Tanzania

On 16 December 2003, the Belgian company New Lachaussée was given the go-ahead from Belgium's state-backed credit agency, Ducroire, for 8.8 million Euro (US$10.8 mn.) of cover on an 11 million Euro investment in an ammunitions plant in Mwanza, Tanzania(208). The company was also seeking government approval for the export of technology to Tanzania for establishing the factory. Given Tanzania’s relatively weak export controls, Amnesty International raised concerns over the effect of the proposed technology transfer and ammunition factory establishment on human rights in the region.

Amnesty International sections in the EU joined other NGOs to lobby and campaign on this issue. Although Federal Minister Louis Michel said in January 2004 that an export to Tanzania was not of concern because Tanzania was not at war, he "rephrased" his answer in the second week of February 2004 saying that there would not be an export to Tanzania. In February 2004, Minister Van Cauwenbergh (the prime minister of the Walloon government) announced that the licence for the export to Tanzania had not been approved due to the uncertain violent situation in the region of the Great Lakes. This is a major success for the human rights and arms control community in Belgium and Europe as a whole. It shows that governments can be made to abide by their international commitments and to act responsibly, when there is enough public and political pressure brought to bear.

The Big Six "Letter of Intent - Framework Agreement"

In a Letter of Intent (LOI) signed in July 1998, the Defence Ministers of France, Germany, Italy, Spain, Sweden and the UK stated their desire "to establish a co-operative framework to facilitate the restructuring of European defence industry."(209) Consequently, the six LOI states negotiated a Framework Agreement "concerning measures to facilitate the restructuring and operation of the European defence industry". (210) Various measures were introduced, including simplified licensing procedures for components. Transfers within the six members are no longer referred to as "exports", which constitutes a step towards a common market for defence goods within that limited area. (211)

For exports to "third countries", a mechanism was established to negotiate common "white lists" of countries eligible to receive certain armaments. States involved in a joint production agreement would negotiate these product-specific "white lists" in advance and by consensus. During the course of the project, potential recipients can be added or deleted at the request of a contributing government.

The implications for arms control and human rights resulting from this process are hard to gauge at present. The Framework Agreement clearly states that consultations preceding the agreement of the "white lists "will take into account, inter alia, the Parties’ national export control policies, the fulfilment of their international commitments, including the EU code of conduct criteria,and the protection of the Parties defence interests, including the preservation of a strong and competitive European defence industrial base."(212) Thus, the Agreement ensures that, for the first time, "taking into account" the fulfilment of the EU Code Criteria is now legally binding for the six LOI states when previously it was only a politically binding commitment. However, the actual wording: ‘taking into account’ indicates a low level of commitment and requires relatively subjective interpretation. Furthermore, such an international treaty is not subject to enforcement in the way that national and European law is.

A further complication arises since the "White List" would be drawn up by consensus, and any country involved in a particular programme can therefore veto the inclusion of a particular destination on the list of prospective customers. Given that Sweden, for example, has tighter export controls than for example the UK when it comes to components, this could mean that UK components would be less likely to be exported to sensitive third country destinations via incorporation in a system produced in another country. However, a UK Ministry of Defence official, questioned by the UK Defence Select Committee and quoted in its Report, admitted that if a minor partner was too eager to wield its veto of particular destinations "…they are unlikely to be a partner of choice in future collaborations. They will also have … to take into account … bilateral relations with the countries concerned, as well as the industrial coalitions." (213)

Lessons to be learned

This chapter has highlighted Amnesty International’s concerns over the inadequate control and reporting by EU governments of the transfer of MSP components and subsystems to "third countries" for incorporation into weapons systems. The deliberate lack of transparency in EU export licensing of components and subsystems to certain countries has hindered parliamentary scrutiny, especially within all ten states included in the CGEA.

EU Member States should affirm through an Operative Provision of the EU Code or an EU Common Position that at least the Code Criteria will be applied to case-by-case licensing of the export of components and subsystems used for arms as well as to complete weapons systems. In order to promote respect for international human rights and humanitarian law, the Member States should agree to actively promote mechanisms, including for greater transparency, to help ensure the effective control of exports of strategic components for final assembly elsewhere.

8. Private Military and Security Services

The last decade has seen a marked increase in the use of private security or military companies by governments, companies and also inter-governmental organisations (IGOs) and even non-governmental organisations (NGOs) to provide security training, logistics support, armed security and, in some cases, armed combatants.

Three terms are often used interchangeably in the debate on the privatisation of security:

mercenaries, private military companies and private security companies. They can be defined as:

* mercenaries – individuals used by non-state armed groups and sometimes by governments who fight for financial gain in foreign conflicts;

*private military companies (PMCs) – corporate entities providing "offensive" services

designed to have a military impact in a given situation that are generally contracted by

governments; and

* private security companies (PSCs) – corporate entities providing "defensive" services to

protect individuals and property, frequently used by multinational companies in the extractive sector, humanitarian agencies and individuals in situations of conflict or instability.

Mercenaries:

Amnesty International believes that all governments should oppose the use of mercenaries as they operate outside the normal criminal justice system and on the fringes of military command structures. This can have important consequences for the protection of human rights, because mercenaries in various conflicts around the world have executed prisoners and committed other serious human rights abuses. It is much harder to hold mercenaries to account than regular members of a country's security force, not least because such personnel can leave the country at any time and thus escape any accountability.

Amnesty International has raised concerns about such mercenary activity in a number of countries including Papua New Guinea,(214) the former Zaire,(215) Cote d’Ivoire(216) and Equatorial Guinea.(217) Past examples of EU citizens acting as mercenaries include: Irish mercenaries allegedly acting as paid assassins in Namibia(218) and French mercenaries training and leading private armies in the Comoros.(219) More recently, in 1995 the government of the Federal Republic of Yugoslavia (FRY) claimed that citizens from Austria, France, Germany, Italy Netherlands and the UK amongst others had fought as mercenaries with the Croatian and Bosnian forces against the Yugoslav People’s Army (JNA) and Serbian forces.(220) As the case of Cote D’Ivoire below shows, the use of mercenaries continues in current conflicts and it would appear that EU governments still seem unable or unwilling to ensure that their nationals do not carry out or facilitate human rights abuses in recipient countries.

Curbing Mercenarism:

Introducing effective international legislation to prohibit mercenaries has proved difficult, particularly as "mercenaries usually deny that they are mercenaries and present altruistic, ideological and even religious reasons to mask the true nature of their participation under international law...but in actual practice the constant factor is money. Mercenaries are paid for what they do. The hired mercenary attacks and kills for gain, in a country or in a conflict not his own."(221)

At the global level the international community has so far failed to introduce effective controls on mercenaries. In 1989 the UN General Assembly adopted the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which finally came into force in October 2001.(222) This declared mercenary activity to be an offence under the Convention and called on states to take preventative measures against their recruitment, financing, training and use.

In response to a question from Amnesty International, the Irish government’s Department of Foreign Affairs stated that whilst Ireland, along with its EU colleagues, had expressed support for the UN Mercenary Convention they had not acceded to it. This response is consistent with that from other EU governments. For example the UK Green Paper on Military Companies states that: "The UK, in common with most other Western Governments, has not become party to the Convention mainly because it does not believe that it could mount a successful prosecution based on the definitions in the Convention. This is because of the extreme difficulty of establishing an individual’s motivation beyond reasonable doubt. It is doubtful whether it would be practical to try to amend the Convention at this stage."

Whilst Germany and Poland have signed the Convention, the only EU states to have ratified or acceded to it have been Belgium, Cyprus and Italy. However, whilst the international approach seems to have stalled, a number of countries, such as South Africa and France, have introduced legislation prohibiting mercenaries and controlling private providers of MSP services.

South Africa’s Regulation of Foreign Military Assistance

The 1998 South African Regulation of Foreign Military Assistance Act is the most far-reaching national legislation dealing with mercenaries and private military companies in the world. Mercenary activity is banned under the Act, however, its wider purpose is to regulate foreign military assistance, defined as including: "advice and training; personnel, financial, logistical, intelligence and operational support; personnel recruitment; medical or paramedical services, or procurement of equipment." The rendering of foreign military assistance is controlled by a licensing and authorisation procedure under the competence of the National Conventional Arms Control Committee. The Act includes extra-territorial application and punitive powers for those that do not abide by it.(223) There have been some prosecutions and convictions under the act, and there is a dedicated unit within the office of the National Prosecuting Authority in Pretoria involved in conducting prosecutions under the act.

France:

A new law in France was passed on 14 April 2003 aimed at preventing French mercenary activity abroad. Any individual recruited for the specific aim of fighting in an armed conflict in exchange for personal advantage or compensation, without being a citizen of a state involved in the armed conflict, a member of the armed forces of this state or an envoy of a state other than those involved in the armed conflict, will be subject to fines and imprisonment: five years and 75,000 euros for an individual, 7 years and 100,000 euros for a recruiter and organiser of mercenary operations.(224)In August 2003 the new law was reportedly put into effect when 11 people were arrested in Paris for their suspected involvement in a plot to overthrow the government of Cote D’Ivoire.(225) Several of them including the alleged leader were released on bail following a decision by a French appeal court in September 2003.

In 2003 Amnesty International called on the French and South African authorities to take action to investigate the reported use of mercenaries from France and South Africa in Cote d’Ivoire.(226)

Private military companies (PMCs) and private security companies (PSCs).

Whilst the international community has sought to prohibit the activities of mercenaries outright, this has not been the case with private military companies (PMCs) or private security companies (PSCs). It is argued by a number of governments, businesses and NGOs that there are certain legitimate and acceptable roles for PMCs and PSCs, as long as they act in accordance with national and international law. As shown by the information below, the provision of private military and security services is a growing market. Research for this report identified 51 companies in 8 EU Member States and new member countries providing private military or security services or training(227).

However, in his 2001 report the UN Human Rights Commission’s Special Rapporteur on the use of mercenaries states: "While private companies play an important role in the area of security, there are certain limits that should not be exceeded. They should not participate actively in armed conflicts, nor recruit and hire mercenaries, much less attempt to replace the State in defending national sovereignty, preserving the right of self-determination, protecting external borders or maintaining public order."(228) Of particular concern is the lack of accountability and absence of regulation in the private provision of military and security services that are being exploited by unscrupulous companies and mercenaries,

The national legislation applicable to PSCs and PMCs varies throughout the EU, with no harmonised or overarching EU administrative framework or criteria. Private military or security companies have the potential to carry out directly, or to facilitate, human rights abuses by non-state and state actors in the recipient country. If this risk is to be minimised it is vital that those companies operating within the rule of law are properly registered, and that international transfers of such services are subject to stringent export controls based upon international human rights and humanitarian law.

Private Military Companies

French Private Military Services(229):

Défense Conseil International (DCI), 49.9 per cent owned by the French government and 50.1 per cent by private investors, has provided military and security training, advice, maintenance and technical assistance to a number of foreign countries.(230) DCI has several subsidiaries including NAVFCO and COFRAS, both of which can supply consultancy, equipment and operational training services as well as the transfer of know-how.(231) However, there appears to be no clear legal accountability to government or parliament for its activities. It claims to have around 700 French Army or retired army personnel, and works closely with the General Arms Delegation in the Ministry of Defence and the Department of Foreign Relations. In a conference in 2003 run by these two organisations with the Institute of International and Strategy Relations, the president of DCI, Yves Michaud, reacted strongly against an Amnesty International (France) speech about the need for transparency and respect of human rights.(232) Despite attempts by Amnesty International to contact DCI no response has as yet been forthcoming.

Private Security Companies (PSCs):

Photo caption: An Israeli security guard escorts children of Israeli settlers during a march at Gush Katif settlement in the Gaza strip on 8 February 2004. The provision of private military and security services is a growing market. © Reuters/Tsafrir Abayov

Services provided by PSCs vary enormously and can range from perimeter and on-site security, the provision of transportation and logistics, to intelligence gathering and interrogation. There are a number of cases where PSCs have directly and indirectly contributed to human rights abuses.

Danish Firm in Israeli Occupied Territories

In March 2002 the Danish-company Group 4 Falck paid US$ 30m for 50% of the shares – and controlling interest - of Hashmira, Israel's largest private security company. Hashmira is the largest security company operating in the West Bank with over 100 armed guards stationed at Jewish settlements. UN Security Council Resolution 446, passed in 1979, affirms that Israeli settlements are illegal, in accordance with article 49 of the fourth Geneva Convention, which prohibits the transfer of a civilian population to occupied territory. The illegality of Israeli settlements in the Occupied Territories is recognized by the EU.

A Guardianinvestigation(233) in the settlement of Kedumim showed that Hashmira's guards worked closely with Israel's military and security apparatus. The investigation reportedly found that the guards, many of whom were Jewish settlers, routinely prevented Palestinian villagers from cultivating their own fields, travelling to schools, hospitals and shops in nearby towns, and receiving emergency medical assistance. Intimidation and harassment were reportedly common, causing many villagers to fear for their lives.

Following this investigation Falck/Group 4 announced that it was withdrawing the Hashmira guards out of the West Bank. A spokesman said: "Even if our investigation clearly indicates that our activities on the West Bank do not entail a breach of human rights, it is not enough for us to be legally in the clear…In some situations there are also other criteria, which we must take into consideration. And to avoid any doubt about whether Group 4 Falck respects international conventions and human rights, we have decided to leave the West Bank."(234)

Netherlands company:

In 1997, a Netherlands-based company, Satellite Protection Services was established which consisted of four operating divisions and offered a range of private military and security services. Satellites Maritime Services (SMS) offered services to ship owners around the world which included specially trained Maritime Security Teams (MST). The members of these teams were recruited mainly from UK and Netherlands special forces. In August 1999, SMS announced its intention to establish an Operating Centre in the Subic BayFreeport (Philippines). The company also announced that there were also plans for liaison offices in Gambia and Curaçao to respectively cover the regions Africa and South America.(235) It was reported in 1999 that the company had been "disowned by Netherlands officials" but that "the authorities have conceded that they are powerless to act unless Dutch law is infringed."(236)

Lessons to be learned

EU governments should introduce legislation to control and monitor the activities of private providers of military, police and security services. Companies and individuals providing such services should be required to register and to provide detailed annual reports of their activities. Every proposed international transfer of personnel or training should require prior government approval. This should be granted in accordance with publicly available criteria based on international human rights standards and humanitarian law. Amnesty International believes that such companies should operate in a manner consistent with international human rights standards and international humanitarian law. EU governments should give consideration to developing a regional mechanism for stringently controlling the activities of private providers of military, police and security services, building upon best practice within and outside the EU.

9. Transfers of MSP personnel, expertise and training

This chapter outlines Amnesty International’s concerns over the lack of regulation and reporting by EU Member States on the provision of MSP training and expertise. Most EU and new Member State governments provide very little information to their parliaments or elected representatives on the range and scope of MSP training or technical assistance that is provided by their own personnel and have little or no regulation of the activities of non-state organisations or private companies providing such assistance.(237)

Provision of MSP assistance by EU governments

A number of EU states - particularly France, Spain and the UK - are important providers of MSP training and military assistance worldwide to the MSP forces of foreign states. Some of this training and assistance may have the potential to benefit recipient communities by providing better skilled MSP forces, which respect the rule of law and seek to promote and protect the rights of the civilian population (see examples of good practice later in this section). However, unless such transfers are stringently controlled and independently monitored, there is a danger that it will be used to facilitate human rights violations.

Whilst a number of governments, for example the US with the Leahy Amendment,(238) do have controls which, in theory, prohibit the governmental transfer of MSP training or equipment to security forces that have poor human rights records, many countries – including a number in the EU – do not. Furthermore such MSP training and assistance is often carried out without adequate parliamentary oversight and in many cases in secret. This secrecy means that the public and legislatures of the countries involved rarely discover who is being trained, what skills are being transferred, and who is doing the training. Both recipient and donor states often go to great lengths to conceal the transfer of assistance and expertise which is subsequently used to facilitate serious human rights violations.

French military and security assistance

France has bilateral defence accords with countries such Burkina Faso, Central African Republic,(239) Congo, Gabon, Cote d’Ivoire (suspended since General Robert Guei entered in power), Rwanda, Togo and Zaire.(240) They are all countries where Amnesty International has reported human rights violations committed by the security forces since 2000. The number of French military personnel in operation in African countries is difficult to establish.(241) In 2000 François Lamy a French deputy, noted that just 39 defence accords were published out of a total of 90.(242)

i The Nationals Schools with Regional Vocations (NSRV): In 2001 it was reported that there were 15 training centres with French Instructors in Benin, Burkina Faso, Cameroon, Gabon, Ivory Cost, Mali, Senegal and Togo for more than 840 trainees coming from 20 countries.(243) In February 2004 it was reported that France opened a new military training centre in Kabul, Afghanistan(244) to help train the reformed Afghanistan Army.

French military schools: In 2000, 1473 places were offered to foreign military officers. Full details of the training are not available. The available information does not mention human rights or humanitarian law, nor if inquiries are made about students’ backgrounds or the risk of their involvement in human rights violations.(245)

Despite the reformation in 2001 of the reporting structures within the French "cooperation policy",(246) there is still a great lack of transparency. The French Parliament does not receive a complete report about French military cooperation programmes abroad. An official of the agency responsible for the cooperation policy told Amnesty International that his agency was always prepared to answer to questions raised by the French Parliament, but he refused to talk about French military cooperation programmes in central Africa, as 'this was confidential information that could not be shared with the general public'.(247) In the past inadequate controls and transparency regarding such military training and co-operation has led to human rights violations in the recipient country.

France and Togo

AI has published several reports on Togo during this past decade that describe its policy of extrajudicial executions, the pattern of "disappearances", arbitrary arrests, and detentions followed by torture and ill-treatment as well as deaths in detention and unacceptable conditions of detention. In one of these reports(248) AI detailed the military assistance that France had provided President Gnassingbe Eyadema's government over a period of several years.

In the context of an agreement on defence and on technical military assistance, Togo has benefited and continues to benefit from significant French military aid. By virtue of this agreement, Togo may call on France at any time in the case of external invasion. The agreement, which has never been made public, also allows for intervention in the case of trouble occurring on Togolese territory. France has already intervened, in September 1996, at the time of an attack by an armed opposition group.

The technical military assistance has three components: assistance from French experts; provision for Togolese trainees to be instructed in France and in military schools situated in the region; and the provision of matériel. Recently there were 17 French police advisers providing technical assistance to the Togolese police force, and a "military cooperation and defence" mission of 19 people. While the stated focus of the latter mission is to prepare the Togolese army for international peace keeping operations, information on the French Embassy in Togo web site stated that other forms of action include: supporting state security, training military forces, including gendarmes. Despite the provision of French training, Togolese forces have continued to carry out human rights violations including torture. In 1998, when AI raised with the Togolese Minister of Defence, the case of a Togolese gendarmerie captain who had been designated by several different people as responsible for torture and ill-treatment, the Minister replied that the captain was being trained in France.(249) Furthermore a high ranking officer in the Togolese gendarmerie, accused by Togo's National Commission for Human Rights of ordering the torture of four people in August 1990, was subsequently awarded the decoration of the National Order of Merit by the French government.

Amnesty International is concerned that, despite France's training of the Togolese security forces, excessive force continues to be used notably during election periods such as in June 2003 when it led to the death of several civilians, and the arrest and arbitrary detention of scores of political opponents.

EU military training and assistance to Colombia(250)

The provision of MSP training or the transfer of expertise or personnel is often just one part of a larger package or military or security aid given by EU Member States to foreign governments. In a number of cases Amnesty International has raised tangible evidence of serious concerns that the MSP aid package or assistance programme has been used to commit human rights abuses by the recipient government. This is illustrated by the grave abuses associated with continuing MSP transfers from certain EU countries to Colombia.

In 2002, following the break-down of peace talks, the 40-year old armed conflict between the Colombian security forces, (acting in conjunction with paramilitary groups), and guerrilla groups, intensified. This resulted in a marked deterioration in the human rights situation. By the end of 2003 more than 600 people had been "disappeared" and more than 3,000 civilians were killed for political motives. Forced internal displacement continued to grow dramatically. Over 2,200 people were kidnapped, more than half of them by guerrilla groups and paramilitaries.(251) The main victims of violations of human rights and international humanitarian law continued to be the civilian population including the internally displaced, peasant farmers, Afro-Colombian and indigenous communities living in conflict zones.

This cycle of political violence was exacerbated by the security policies of the new government of Álvaro Uribe Vélez which took office in August 2002. The creation of a network of civilian informants, and an army of "peasant soldiers" required to collaborate with the security forces has put civilians in danger of attacks by the guerrillas. The approval in Congress of a law that grants judicial police powers to the armed forces is likely to facilitate the existing practice of launching often spurious criminal investigations against human rights defenders and other civilians, heightened risk of violent attack by paramilitaries, regardless of whether or not investigations uncover evidence of criminal wrong-doing. With the military "policing" themselves, very few, if any, are likely to be investigated for human rights violations.(252)

Under international humanitarian law, the civilian population is entitled to be shielded from the effects of armed conflict. However, civilians in Colombia are the prime targets as the parties to the conflict compete for territory through the control of the civilian population. The Colombian armed forces and their paramilitary allies as well as the armed opposition groups have all been responsible for serious and persistent human rights abuses. Amnesty International has documented the mounting scale of such abuses in certain areas of Colombia. For example in a recent report Amnesty International has discovered that in the municipality of Tame alone, which has a population of only some 55,000, at least 175 people were murdered in 2003, compared to 144 in 2002 and 86 in 2001.

Photo caption: A military instructor talks to peasant-soldier recruits at a base in Popayan, in the department of Cauca, Colombia, in January 2003. The creation of an army of "peasant soldiers" required to collaborate with the Colombian security forces has put civilians in danger of attacks by the guerrillas. Amnesty International does not believe that EU states should giving military aid while the Colombian government is pursuing policies such as this that threaten to deepen the human rights crisis. © AP Photo/Oswaldo Paez

Despite these grave concerns, a number of EU countries, including France, Spain and the UK, have provided MSP assistance and training to the Colombian government forces over the past few years. Amnesty International is concerned that many of those MSP transfers may have been used for grave human rights violations by the Colombian military.

In 1999 the Foreign Office confirmed that the UK had given training on urban warfare techniques, counter-guerrilla strategy and "psychiatry".(253) During 2002 the UK provided military advice and training assistance to Colombia, and in 2003 the Armed Forces Minister Adam Ingram, admitted that "military liaison teams" had been sent to Colombia.(254) Media reports indicate that the UK has also provided military advice in the setting up of newly created Colombian army mountain units.(255) In July 2003 the Foreign Office held an international conference on support for Colombia, the second in two years, which involved the EU, the US, several Latin American countries and the IMF. UK special forces, whose activities are not formally acknowledged by the government, have been present in Colombia since the 1980s, and is thought to be involved in counter-insurgency training.(256) A security analyst with close ties to the Colombian defence ministry suggested recently in the UK press that the UK is now the second biggest donor of military aid to Colombia after the US.(257)

According to press reports during President-elect Uribe’s visit to France in July 2002, the French Minister of the Interior, Nicolas Sarkozy, offered his "total apoyo a la lucha contra la guerrilla y el trafico de drogas"("total support to the fight against the guerrillas and narcotrafficking"). He suggested the possibility of sending a delegation of police and gendarmerie experts to Colombia. According to the Colombian press, Uribe requested military aid from the French government; it has also reported that France had a technical cooperation agreement with Colombia which included a US $200 million facility for Colombia to purchase weapons.(258)

At the end of February 2003, the Spanish government announced a huge unconditional package of military assistance to the Colombian government armed forces. Anti-terrorist equipment and exchanges of military personnel to help train the Colombian security forces in military intelligence and anti-terrorism were included in the package. It reportedly included two C-212 military transport planes and real-time satellite intelligence, as well as the possibility of helicopters and patrol launches.(259)

United Kingdom aid to foreign military

In 2000 a parliamentary answer provided details of how Britain had provided military training for nearly 4500 foreign military personnel from over 100 countries including Algeria, Brazil, Indonesia, Israel, Nigeria, Pakistan, Saudi Arabia and Zimbabwe between April 1999 and March 2000.(260) Neither details of the nature of the military training nor of the specific forces trained has been made public. Such training is of potential concern given the poor human rights record of many of the countries whose forces were trained. Without adequate transparency and reporting to the public and parliament, such MSP training can facilitate human rights violations in the recipient countries.

United Kingdom and Jamaica

Jamaica suffers from a high level of crime and police officers frequently face armed criminals, at times leaving them with no alternative to the use of lethal force to protect their own lives and the safety of the public. However, over recent years, Amnesty International has documented numerous cases where the evidence overwhelmingly indicates that those killed were extra-judicially executed.(261) Although the UK is the principal provider of external assistance to the Jamaica Constabulary Force (JCF), including programmes in human rights and firearms training and forensics, such assistance has been insufficient to end the pattern of extra-judicial executions and impunity by the JCF.

With 133 deaths at the hands of the JCF in 2002 alone, Jamaica had one of the highest rates of police killings per capitain the world.(262) In April 2001 and March and July 2003, Amnesty International released reports documenting extra-judicial executions and violence by members of the Jamaica security forces, including the "killing of the Braeton Seven.(263)

However, in 2001, the UK government issued an arms export licence authorising the transfer to Jamaica of 300 handguns, small arms ammunition, weapon sights and gun mountings. The UK government subsequently reported that 100 Beretta pistols were actually transferred. Amnesty International protested against such transfers and sought assurances that the UK government would not export arms to Jamaica for use by the JCF until significant steps were taken to re-train JCF officers to operate within existing UN standards on law enforcement, criminal justice and human rights, and until effective monitoring and accountability systems have been put in place.

In 2003, Amnesty International called upon the Jamaican government to hold police officers accountable for committing extrajudicial executions - "not one police officer has been convicted of an extrajudicial killing since 1999, despite over 600 killings at the hands of the police since that date, many in disputed circumstances." The organisation documented in detail the impunity with which the JCF are able to kill, and called for a worldwide campaign for the protection of human rights in Jamaica. (264)

Good practice in EU training and assistance:

Some examples have been reported of international military and security assistance by EU Member States and their partners which incorporate human rights and other international standards into their operational procedures and accountability systems. A few that try to help curb the illicit circulation and misuse of small arms in line with the EU Joint Action on Small Arms(265) have been innovative, and these point to the possibility of the EU establishing good practice guidance for aid programs to military, police and security sectors.

Cambodia:

Lax storage facilities for police firearms fuels armed crime in many countries. For example many policemen in Cambodia used to take their weapons home at night and they would be used off duty in domestic and neighbourhood disputes. Now however, an ambitious project of management and storage of weapons is underway. After a successful project to store army weapons, the European Union has funded a programme for police weapons in Phnom Penh, Kandal and Kampong Speu provinces.(266) The EU coordinating body claims that this project has:

· registered all weapons belonging to the National Police in a centralized computer database; · built one safe storage depot in each province for police weapons not in daily use. Each building is capable of storing 1,260 weapons;

· constructed a larger storage depot for national reserve weapons in Phnom Penh. This has a storage capacity of over 7,000 weapons;

· equipped each police post with a rack to lock up the duty weapons. A total of 477 racks were produced for the three provinces. This represents a storage capacity of 5,670 weapons;

· installed additional racks in the Ministry of Interior in Phnom Penh for an extra capacity of 800 weapons;

· provided training courses in logistics, weapons management and computer skills for relevant police officials.

The EU has also provided a series of fourteen training courses for policemen in the rural areas of Cambodia with the aim of improving their relations with the local villagers.(267) One outcome from such training is that when the villagers trust the police, they will hand in their illegal weapons; but they will only trust the police when neither the police, nor the police weapons, are seen as a threat to the villagers. (268)

UK and Norwegian aid to Malawi: From 1999, the UK and Norwegian governments have provided aid to enable the Malawian government to reform its police and criminal justice system. With civil society and NGO cooperation the Malawian government has engaged community representatives in hundreds of new Community Policing Forums across the country. Awareness of basic human rights standards for policing and the dangers of the proliferation of firearms are spread using posters, radio, TV and other media, including a video film, "Protecting our lives". (269) Although it is too early to tell how effective this has been in reducing violent crime and countering the illegal possession of firearms, there have been indicators of increased reporting of illegal firearms by the community to the police. Increased public awareness of policing issues has helped police gather more information and build public support for policing by consent. Nevertheless, reform of the Firearms Act and policing standards regarding the use of force and firearms are still inadequate, and there is a lack of transparency regarding both investigations of police misuse of firearms, and police issuance of firearms licences to civilians.(270)

Lessons to be learned:

All international assistance programmes by EU Member States should ensure that the training of military, security and police personnel of another country does not include the transfer of skills, knowledge or techniques likely to lend themselves to torture or ill-treatment in the recipient country. The practical application of relevant human rights standards and humanitarian law should be fully integrated into such training programs.

10. Surveillance and "Intelligence" Technologies

Amnesty International is greatly concerned by instances where the provision of powerful surveillance and interception capabilities to repressive states are contributing to human rights violations carried out by the police, security and intelligence forces. Criterion Two of the EU Code prohibits the transfer of equipment which might be used for "internal repression" and Operative Provision 6 covers certain dual-use goods "where there are grounds for believing that the end user of such goods will be the armed forces or internal security forces or similar entities in the recipient country".(271) However, EU governments so far appear to limit the definition of security and dual use equipment that can be used to facilitate internal repression to "lethal" or military hardware.

Surveillance and C3I (command, control, communication and intelligence) technologies cover a wide range of components, sub-systems, products and software. They are used by military, law enforcement, emergency services, commercial and private organisations. Whilst the term C3I is generally used to denote military and police systems, civilian systems are more commonly referred to as ICT (Information & Communication Technologies). However, as this report illustrates, most civilian communications have inherent surveillance and "control" facilities and therefore this report includes military, police and civilian systems within the C3I category. The uses of surveillance systems can range from providing Closed Circuit Television (CCTV) surveillance, local, regional or national traffic control to global systems for the monitoring of telephone, internet and fax communications. Such systems may have legitimate military, police and civilian uses. Amnesty International does not oppose the transfer of surveillance and C3I technologies in general, but such technologies have inherent capabilities that facilitate human rights abuses by security forces in repressive countries.

China:

In the days following the Tiananmen massacre on 4 June 1989, the Chinese authorities used images from a CCTV traffic control system originally supplied by the USA and the UK with World Bank assistance to create instant "wanted" posters from close-up images of student activists. These were broadcast on state-run television with a telephone number asking viewers to report those portrayed. Arrests of prisoners of conscience and unfair trials followed. In 2002 a human rights researcher revisited Tiananmen Square and established that surveillance cameras were still operating.(272)

Colombia:(273)

On the night of 12 November 2002, about 700 soldiers surrounded the town of Saravena, Arauca to enable the army, police and members of the Offices of the Attorney General(274) and the Procurator General(275) to raid homes, workplaces and shops. By the end of the evening more than 2,000 civilians had been rounded up at gunpoint and taken to Saravena’s stadium where they were photographed, videotaped, questioned, their background checked, and their arms marked with indelible ink.

This mass detention, known as Operation Heroic (Operación Heroica) purportedly designed to round up alleged members of armed opposition groups, was the largest operation of this kind carried out by the Colombian security forces in recent years. Most of Saravena’s human rights community, as well as many known trade unionists and other social leaders were among the 2,000 people detained that night. However, only 85 were officially arrested. Of these, 35 were subsequently released for lack of evidence. Of the remaining 51, around 40 were trade unionists. At the time of writing this report, as few as 30 of the 2,000 people rounded up that night are still believed to be under investigation.

Because of the "invisibility" of surveillance systems it is very difficult for human rights organisations to provide direct evidence of the impact of surveillance and C3I systems on human rights violations.

EU export controls of Surveillance and C3I technologies :

If they are designed primarily for military users, exports of some of these technologies are controlled through the Military List,(276) whilst some others are controlled through the EU Dual-Use list.(277) However, it is unclear whether some surveillance technologies, if designated for police or commercial use, are subject to any export licence control at all.

There appears to be little understanding amongst government export control departments of the potential impact that such technologies have on facilitating serious human rights abuses. Amnesty International believes that greater attention needs to be given to the export licensing and transfer of these technologies to countries or MSP forces that have poor human rights records. Such inattention to the serious impact that such surveillance technologies can have on civil liberties and human rights is illustrated by the interpretation by certain EU governments of the EU embargo on China,(278) adopted in June 1989 following the Tiananmen massacre. Despite the embargo and the EU Code, both of which contain criteria prohibiting the transfer of equipment which might be used for "internal repression" it is clear that EU companies have been involved in the supply of communication and surveillance systems that have contributed to "internal repression in China. (See also the Undermining the Criteria Chapter for related discussions). Transfers of concern continue.

Identification control technologies:

In 2002, the French firm Thales Identification reported that China had chosen the company’s secured identification technology to produce its new "smart" national ID card. According to the company, "the project has the potential to become the biggest of its kind worldwide with more than 1 billion potential users." The company stated that it would provide the Chinese authorities with the secured identification systems to personalise the card graphically and electronically.(279)

According to the Ministry of Public Security, the authorities have issued 1.14 billion ID cards since 1985 when it started using ID numbers to identify residents on the mainland. New ID cards will use integrated circuitry (IC) technology to make them harder to forge. The new IC identification cards can be read by computers, which make it possible for police to check huge numbers of ID cards in a much shorter time than before. This has lead to concerns from Chinese legislators that the police may infringe the rights of individuals during random ID cards checks.(280) In 2002, a Newsweekarticle described how some Internet cafes in Jiangxi province were "experimenting with swipe cards linked to customers’ national ID cards. Some Beijing Internet cafes have installed surveillance cameras overlooking computer screens. One cafe manager took foreign reporters to a back room, where a police-linked computer, connected to four spy cameras, monitored users."(281)

Despite the difficulties of documenting the impact of such technologies, Amnesty International and other human rights groups have reported the impact of telephone-tapping and other surveillance systems in a number of countries including Saudi Arabia,(282) and Mexico, where in 1996 Amnesty detailed a "sharp increase in the targeting of human rights defenders throughout Mexico. In scores of cases such threats contain extensive details about the victim’s personal and professional lives, suggesting intelligence work, including telephone-tapping. Amnesty International believes that such activities cannot happen without the authorities’ acquiescence."(283) Amnesty has also reported on the activities of the security forces in India(284) and Tunisia where it has documented how "alongside imprisonment, short-term detention, harassment and torture, the authorities have introduced telephone tapping, fax and mail interception and even sleaze campaigns to harass and intimidate human rights defenders and curtail their activities".(285)

Some telephone-tapping and surveillance can be relatively "low tech" as illustrated by the use of tape recording equipment in Guatemala during the 1990s. Both the Human Rights Ombudsman and the Archbishop's Human Rights Office (ODHA) complained, the director of the ODHA stating that "here the espionage is outrageous, you can hear when the tape starts to run and [the people listening] talk in the middle of the conversations we're having." The director of the Guatemalan Telephone Company (TELGUA) stated that they do not have the technical or human capacity to carry out phone tapping. He later admitted that, "Rudimentary equipment for this practice has been placed in the exterior boxes." (286)

However, surveillance technologies and software have developed at a rapid pace and many of the modern surveillance functions have outpaced developments in export controls and in many cases the ability of politicians to understand the dangers that such systems can pose when exported to repressive regimes.

EU "lawful interception" and the potential impact on human rights

Privacy is specified as a fundamental right by a number of international agreements.(287) At a global level, Article 17 of the International Covenant on Civil and Political Rights guarantees the protection of privacy. At the European Union level Article 7 of the EU Charter of Fundamental Rights explicitly includes in law the right to respect for privacy of communications. Despite such international conventions, Amnesty International is concerned that the supply of telecommunications infrastructure systems by European Union based companies to countries with poor human rights records will facilitate violations of such fundamental human rights. By adhering to EU standards, these telecommunication systems will have built-in capabilities to enable "lawful interception" by legitimate "law enforcement agencies". Such "lawful interception" may be acceptable in countries that have effective parliamentary scrutiny and legal mechanisms to ensure the accountability of the surveillance activities of the police and intelligence services. But in many countries where a pattern of human rights violations is committed by the "law enforcement agencies", the supply of hi-tech telecommunications infrastructure with built-in interception, surveillance and monitoring capabilities can only facilitate such violations.

Any EU company providing telecommunications infrastructure systems is required to meet the technical standards produced by the "Working Group on Lawful Interception" (WG LI) of the European Telecommunications Standards Institute (ETSI).(288) One of the key guidelines is that "the act of interception is kept discreet".(289) ETSI has devised a number of standards for different types of communication systems such as Terrestrial Trunked Radio (TETRA) and the 3rd Generation mobile phone systems.(290) The need for secrecy or "non-disclosure" as it is called is outlined in the technical specification for the lawful interception of the Terrestrial Trunked radio (TETRA).(291) It is clear from this specification that the "manufacturers of the technical installations" are involved in the implementation of the "lawful interception" capabilities and activities of the communications systems.

According to a 2001 report, the EU (and ETSI) had co-operated with the US-Federal Bureau of Investigation to create international technical standards for interception (wiretapping). In 1993, the FBI had hosted meetings at its research facility in Quantico, Virginia called the "International Law Enforcement Telecommunications Seminar" (ILETS), inviting representatives from Canada, Hong Kong, Australia and the European Union. At these meetings, an international technical standard for surveillance, based on the FBI's demands, was adopted as the "International Requirements for Interception."(292)

This means that all EU countries have to ensure that their systems have built-in capabilities for "lawful interception". For example, in 1999 it was reported that the US-based company Nortel Networks and the US Federal Bureau of Investigations had reached a "first-of-its-kind agreement enabling telecommunications companies to use computer software to assist law enforcement agencies in conducting lawfully authorized wiretapping under the 1994 Communications Assistance for Law Enforcement Act".(293) These interception capabilities are not restricted to the boundaries of the EU as was identified by the 1996 ETSI guidelines on interception across national boundaries. The ETSI guidelines state that if the interception interface lies in a foreign territory, then arrangements are made by EU Member States so that interception is still possible.(294) Although subject to further review, the guidelines imply that any telecommunications infrastructure systems installed in non-EU countries would need to have the same level of "lawful interception" capabilities as a European system.

Even where national legislation exists to control the use of telephone-tapping and other forms of surveillance, this legislation can be ignored or abused by law enforcement or intelligence agencies. For example, in Taiwan, under the martial law-era Telecommunications Surveillance Act, permission for telephone tapping and other similar interferences with privacy of communications must be granted according to law. However, according to the Taiwan Association for Human Rights in 1999, "prosecutors appeared to have abused their eavesdropping power by authorizing law enforcement units to monitor more than 16,000 telephone calls in less than a year. Such behaviour has constituted a serious infringement of peoples’ privacy."(295) In 1999 the new Telecommunication Protection and Control Act imposed stricter guidelines on how wiretaps could be used, although they can still be approved for broad reasons such as "national security" and "social order". According to the US State Department, following the new law the number of wiretaps was 3,377 in 2000 and 6,505 in 2001.(296)

Research conducted for this report has discovered that 28 companies in eight EU and new Member State countries manufacture or supply equipment designed for the purposes of covert surveillance and the monitoring of telephone and other forms of electronic communications.

Turkmenistan:

In September 2003 Amnesty International reported serious, widespread and ongoing human rights violations by the Turkmenistan government. (297) Similarly in 2002, and for many previous years, the US State Department has reported that: "Security officials used physical surveillance, telephone tapping, electronic eavesdropping, and the recruitment of informers. Critics of the Government, and many other persons, credibly reported that their mail was intercepted before delivery. Mail delivered to the post office must remain unsealed for government inspection." (298)

It was therefore of concern that in early 2001, the Ministry of Communications of Turkmenistan signed a contract with German company Siemens and French company Alcatel for Euro 3.3 million to install 12,000 telephone lines. Since 1993 Alcatel has installed 60,000 lines while Siemens has installed 40,000. A total of 325,000 lines are to be installed by 2010.(299) As two leading EU telecommunications companies, it is assumed that both Siemens and Alcatel comply with the ETSI guidelines – and therefore ensure that their telecommunications systems are designed to enable government surveillance and telephone tapping to take place.

Amnesty International is concerned that the German and French governments have permitted such transfers despite reports by governments and human rights organisations that the Turkmenistan government has a longstanding and continuing practice of surveillance and telephone tapping as part of a policy of repression against those perceived to be critical of the government.

For example, in one case a civil society activist who had a telephone conversation with a representative of a foreign human rights organisation was subsequently summoned to the Secret Service in July 2003. Here the activist was questioned about his conversation with direct reference to what had been discussed in the phone call. There are strong indications that the authorities in Turkmenistan are also trying to monitor emails.

Amnesty International’s concerns about the transfer of telecommunications systems to Turkmenistan have been deepened by recent revelations in the German magazine Der Spiegel that Siemens had also transferred surveillance and telephone tapping equipment to Turkemenistan.(300)This was confirmed by correspondence between Amnesty International and Siemens. In a letter to Amnesty dated 17 February 2004, Dr Peter Ramm of Siemens stated: "In accordance with a contract that was signed in the year 2000, monitoring-facilities were delivered, which due to the client would be exclusively used to monitor activities in organised crime and terrorism. This appeared to be believable purpose, given the country’s location in an unstable crisis-ridden region, and its shared borders with Afghanistan and its former Taliban-Regime. Comparable and more advanced technical facilities are in use in a number of democratic countries, including Germany." (301)Dr Ramm continued that "Those responsible for this business agreement were obviously aware that Turkmenistan is not a western-style, democratic state. However, they assure that they were not aware of any human rights violations at the time the contract was signed - in the year 2000….The secret service was not our client. If there has been a misuse recently of the technical facilities delivered by us, we are very sorry and distance ourselves from the matter explicitly. We will approach the client appropriately through existing contacts. However, neither are we able to verify misuse ourselves, nor are we technically able to stop it."

Intelligence and surveillance provided by EU Member States

A number of EU governments have provided intelligence and surveillance assistance packages directly to governments whose security forces have used such intelligence to target perceived opponents such as human rights defenders, trade unionists and journalists. Such "opponents" have subsequently faced intimidation, arrest and sometimes torture and execution.

Colombia:

In its ongoing conflict with left-wing guerrillas and drug-trafficking cartels, the Colombian government has been the recipient of direct MSP assistance from a number of states. The vast majority of this MSP aid has come from the US Plan Colombia programme. However, a number of EU states have been significant providers of additional MSP support, including surveillance and intelligence assistance.

It has been reported that two Spanish satellites will be made available to the Colombian government, one for observation and another for communication. The majority of information will come from the Helios 1B reconnaissance satellite, which was launched in 1999, jointly financed by Spain, Italy and France. In 2004, France, Belgium and Spain will launch Helios 2, a satellite with infra-red technology able to undertake night-time intelligence photographs. Military intelligence collected by this second satellite will also reportedly be provided to Colombia. Spain will also provide assistance and collaboration in the "fight against terrorism" with eavesdropping equipment and intelligence training developed in its fight against ETA.(302)

It was reported in March 2003 that Colombia had asked for further military intelligence assistance from the British government.(303) According to the Colombian media the UK may be providing support in the creation of the Centro Nacional de Inteligencia, CENIT, National Intelligence Centre, a body to coordinate all Colombian security force intelligence operations.(304) On a visit to Colombia in July 2003 Nicholas Sarkozy, the French Minister of the Interior, renewed his pledge to support the Colombian government and signed an agreement which included exchange of intelligence data.(305)

Amnesty International is also concerned that the US military Forward Operation Locations (FOLs) in the Dutch islands of Curaçao and Aruba, as well as El Salvador and Ecuador, from where US aerial intelligence flight operations are reportedly coordinated over Colombia and other countries of the Andean region could facilitate human rights violations. A number of Dutch NGOs are currently coordinating efforts to raise concerns on agreements reached between the US government and the Dutch government for the operation of FOLs in Curaçao and Aruba. It is interesting to note that in the USA’s Plan Colombia there is a budget allocation of around USD 54 million to upgrade the Aruba FOL and the Curaçao FOL.(306)

Given the failure by the Colombian authorities to significantly reduce human rights violations by the security forces and particularly by the security force-backed paramilitaries, there can be no guarantees that this intelligence support will not be used by military units operating in collusion with paramilitary structures or to help coordinate paramilitary operations. The Colombian authorities have not yet fulfilled UN requirements to ensure that all Colombian military intelligence files are revised and the data contained on human rights defenders and other legitimate civil society representatives made public. In a letter to President Uribe, dated 11 June 2003, Colombian non-governmental human rights organizations called on the government to revise military intelligence files and ensure that if any of these files contained information which justified legal proceedings these should be undertaken observing all the guarantees for a fair and impartial trial or investigation and if they contained no such information the file should be destroyed.

A report by the UN Special Representative on Human Rights Defenders, Hina Jilani, had expressed concern about practices of the Colombian police and the army against human rights defenders, in particular the keeping of intelligence files containing false information about human rights defenders and the tapping of telephones of NGO offices. According to information provided to her, there are clear parallels between the information collected by military intelligence regarding human rights defenders and the information that appears in public threats issued by paramilitary forces.(307)

Internet "blocking" and surveillance

Article 6 of the UN Declaration on Human Rights Defenders states that: "Everyone has the right, individually and in association with others [...] freely to publish, impart to disseminate to others views, information and knowledge on all human rights and fundamental freedoms [as well as] to study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and appropriate means, to draw attention to those matters." (308) However in many countries human rights organisations have detailed attempts by the authorities to block access to the internet, censure the content of internet web sites and harass and intimidate internet users.

For example in Togo, Amnesty International received reports that the authorities informed an internet café owner that internet access would be cut during the hours immediately after the election in June 2003. For some months previously Togolese authorities had, in fact, censored some Internet sites by preventing access from Togo. This measure seems to have been taken after September 2002 when the website letogolais.compublished an interview with the former Prime Minister, Agbéyomé Kodjo, currently in exile, which criticized the way political power was exercised in Togo. In the same period, the authorities also prevented access from Togo to other websites, including that of the UFC opposition party.(309)

Saudi Arabia has provided limited Internet Access via a government controlled ‘gateway’ at King Abdul-Aziz City for Science and Technology. (310) However, the access is through a special telephone number which can be identified by the primary exchange(311) (and presumably monitored) and it has been reported that the Saudi government have deployed web monitoring that is more ‘sophisticated’ than just blocking or filtering access to specific "undesirable" web addresses. It was reported that "users who attempt to access banned sites reportedly receive warnings on their computer screens that their access attempts are being logged."(312)

Photo caption: An Amnesty International internet campaign calling for the release of Le Chi Quang, who was sentenced in November 2002 to four years in prison in Vietnam for writing about democracy and human rights on the Internet. © AI and Pilgrim Communications

China and the Great Firewall:

0 It is China that is thought to have in place the most extensive censorship of the Internet of any country in the world.(313)

Up to 7 January 2004, Amnesty International had recorded(314) the names of 54 people who had been detained or imprisoned for disseminating their beliefs or information through the Internet-a 60 per cent increase compared to figures recorded at the end of 2002. (315) Those detained for downloading information from the Internet, expressing their opinions or circulating information on the Internet or by email include students, political dissidents, Falun Gong practitioners, workers, writers, lawyers, teachers, civil servants, former police officers, engineers, and businessmen. Signing online petitions, calling for reform and an end to corruption, planning to set up a pro-democracy party, publishing 'rumours about SARS(316)', communicating with groups abroad, opposing the persecution of the Falun Gong and calling for a review of the 1989 crackdown on the democracy protests are all examples of activities considered by the authorities to be "subversive" or to "endanger state security". Such charges almost always result in prison sentences. Prison sentences ranged from two to 12 years.

Many of those arrested have been held for long periods, sometimes for over a year, awaiting a formal trial and for some there has been a long delay between trial and sentencing. All are believed to have been denied full and adequate access to lawyers and their families, particularly during the initial stages of police detention, and several have reported being tortured or ill-treated. Such violations of the right to a fair trial and to freedom from torture or ill-treatment often contravene provisions of China's Criminal Procedure Law as well as international human rights standards.

Huang Qi is notable for being the first person in China to be arrested for posting articles concerning human rights and political issues on his own website.After his trial in August 2001, he continued to be detained for almost two years before his sentence was finally announced on 9 May 2003 - five years' imprisonment for "inciting subversion". By that time Huang Qi had spent a total of almost three years in detention. This was taken into account in his sentencing and he is due to be released in June 2005. It remains unclear why it took so long for the sentence to be announced after the trial. Huang Qi filed an appeal on 18 May 2003 pointing out that China's Constitution guarantees the right to freedom of speech and of the press. During his appeal hearing, prison guards reportedly held him down by the throat as he tried to speak in his defence. In August 2003 his appeal was turned down and the five-year sentence upheld.

According to the court verdict, the prosecution cited evidence which included reference to the posting of an Amnesty International document on Huang Qi's website. Amnesty International believes that merely publishing names of individuals imprisoned following the 1989 pro-democracy protests on the Internet can never amount to "inciting subversion". After his appeal Huang Qi was transferred to Chuanzhong high security prison, in Nanchong in Sichuan Province. Following a visit by representatives of the international non-governmental organization, Reporters Without Borders in October 2003, Huang Qi was reportedly placed in solitary confinement and then moved to a punishment cell. He is reported to be in poor health.

Many of the toughest regulations to control the Internet have been issued since 2000 and those who cause "especially serious harm" by providing "state secrets" to overseas organizations and individuals over the Internet can be sentenced to death. As all communication on the Internet in China passes through government-controlled routers the authorities are able to block access to many sites and to filter content and delete individual links or web pages if considered "dangerous" or "subversive". No list is publicly available on what is filtered and blocked, but one study done by the Harvard Law School found that over 50,000 of 204,000 web sites tested were inaccessible from at least one location in China although some were accessible from the USA. (317)

Amnesty International has reported how, over the past year, websites using banned words such as 'Taiwan', 'Tibet', 'democracy', 'dissident', 'Falun Gong' and 'human rights', have continued to be regularly blocked, together with the websites of international human rights groups, including Amnesty International, and several foreign news sites. In addition, several new regulations have devolved greater responsibilities for control of the Internet to Internet cafes, companies and, most recently, portals providing news. In October 2003, the Ministry of Culture announced that by the year 2005 all China's 110,000 Internet cafes will need to install surveillance software which would be standardised throughout all Internet cafes in China. The Ministry of Culture also intends to issue licenses to allow up to 100 companies to manage the majority of Internet cafes. According to Liu Qiang, a senior official with the Ministry of Culture, the management companies would be required to use software that would make it possible to collect personal data of Internet users, to store a record of all the web-pages visited and alert the authorities when unlawful content was viewed. On 20 November 2003 the Ministry of Information Industry (MII) issued rules for approximately 30 large companies that manage Internet addresses in China. While these regulations appear to be intended to improve service standards, they are also aimed at strengthening control over sensitive information posted on the web.

As China's burgeoning economy grows and with its admission in December 2001 to the World Trade Organization (WTO), foreign ownership, investment and involvement of foreign companies in China's telecommunications industry have soared. One foreign investor, Nortel Networks, announced in September 2003 that it plans to invest US$200 million over the next three years to strengthen its research and development capabilities in China.

Amnesty International remains concerned that in their pursuit of new and lucrative markets, foreign corporations may be indirectly contributing to human rights violations or at the very least failing to give adequate consideration to the human rights implications of their investments. In its first report on State Control of the Internet in China, Amnesty International cited several foreign companies (Cisco Systems, Microsoft, Nortel Networks, Websense and Sun Microsystems – many of whom have production or distribution operations in the European Union), which had reportedly provided technology which has been used to censor and control the use of the Internet in China. Amnesty International urges all companies which have provided such technology to China to use their contacts and influence with the Chinese authorities to bring an end to restrictions on freedom of expression and information on the Internet and to urge the release of all those detained for Internet-related offences in violation of their fundamental human rights.(318)

Key lessons to be learned

Despite evidence from Amnesty International and other human rights groups about the extent to which communication and surveillance systems have contributed to, or facilitated "internal repression" in China, and other countries, EU governments seem to have paid little regard to this aspect of export control.

All EU governments and the European Commission should review their export control policies with regard to the export of "dual-use" goods and their obligations under Operative Provision 6 of the EU Code of Conduct so as to develop further specific mechanisms to ensure that that the transfer of sophisticated communication and surveillance systems is not permitted to countries where such systems are likely to be used to facilitate human rights violations.

11. Security Equipment used for Torture and Ill-Treatment

In June 2002, the 15th anniversary of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the EU called on all countries to comply with its unconditional prohibition on all forms of torture, and to adhere to international norms and procedures. The EU noted that even though 129 States were parties to the Convention, torture continued to occur and perpetrators were going unpunished, even in countries that had ratified it.(319)

But despite such high profile support for the Convention against Torture the EU’s commitment to take action against torturers and torturing states has not been reflected in its controls on the equipment that can be used for torture. This is despite the requirement of Criterion Two of the EU Code of Conduct which requires that MSP equipment should not be exported if there is a risk that it will be used to abuse human rights. Companies in the EU and New Member States are still manufacturing and trading in such equipment. Amnesty believes that some of this equipment should be banned outright and that strict export controls should be introduced on the rest.

In December 2002, the European Commission introduced a draft Trade Regulation which proposes a new control regime on equipment that can be used for torture. However, this Regulation has remained stuck "in committee" and Amnesty International has serious concerns that the EU member states are attempting to weaken the draft controls.

This chapter provides examples of the continuing trade within the EU and new member countries in stun guns, shock batons, leg cuffs, leg irons and other restraint technologies, and the lack of effective export controls. Amnesty International continues to document how the uncontrolled trade in such technologies contributes to torture and serious human rights violations in many countries worldwide.

Mechanical Restraints

Handcuffs, leg irons, shackles, chains and thumbcuffs are some of the most widely used security devices. Although certain forms of restraint devices such as handcuffs(320) or straightjackets are sometimes needed by law enforcement officials to control dangerous prisoners, many are also widely misused.

For almost half a century, international human rights standards have required governments to prohibit absolutely the use of chains and irons, such as shackles, on prisoners.(321)Yet in many parts of the world, chains and irons and other mechanical restraints are used to punish, torture and mistreat prisoners and detainees. Amnesty International has documented the use of leg irons in at least 38 cou